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I. 

I' f DECISIONS RENDERED 



BT THB 



Supreme Court jf the Hawaiian Islands 



CRIMINAL, DIVORCE, EQUITY, LAW, PROBATE, 



SEPTEMBER, 1889. TO DECEMBER, 1892, INCLUSIVE. 



HA^ATAIIAN REPORTS, VOL. VIII 



f* ' 



Compiled by William Foster. 



HONOLULU : 

PRINTED BY THE HAWAIIAN GAZETTE CO. 

1893. 



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^c. 




: z6 /g^fs 



Justices of the Supreme Court 

DURING THE PERIOD COVERED BY THIS VOLUME. 



OHISF JTTSTIOB AND OHAKOEIiLOH, 

ALBERT FRANCIS JTDD. 

FIRST ASSOGEATB JUSTIOJd, 

LAWRENCE MoCULLY, 

Died Apnl 10, 1892, 

RICHARD FREDERICK BICKERTON, 
Appointed April 11, 1892. 

8B0OND ASSOCIATE JUSTIOE, 

RICHARD FREDERICK -BICKERTON, 
Appointed April 29, 1890. 
Promoted April 11, 1892. 

SANFORD BALLARD DOLE, 

Appointed April 11, 1892. 

THIRD ASSOCIATE JUSTICE, 

RICHARD FREDERICK BICKERTON, 
Promoted April 29, 1890. 

SANFORD BALLARD DOLE, 

Appointed April 29, 1890. 
Promoted April 11, 1892. 

FOURTH ASSOCIATE JUSTICE, 

SANFORD BALLARD DOLE, 

Promoted April 29, 1890. 



ATTORNEYS GENERAL. 

Clarence W. Ashford, resigned June 14, 1890. 

Arthur P. Peterson, appointed June 17, 1890, resigned Feb. 25, 1891. 

W. Austin WHiTiNa, " Feb. 25, 1891, " July 27, 1892. 

H. A. Widemann, ad interim. 

Paul Neumann, appointed Aug. 29, 1892, resigned Oct. 17, 1892. 

Chas. Crbighton, " Nov. 1, " " Nov. 1, " 

OisorL Brown, " Nov. 8, " *' Jan. 12, 1893. 



GosBBonoN : 
On page 317, omit Thurston <Ss Frear from oounsel for plaintiff. 



. .Id: 






I, 

This volume continues the decisions of the Full Court from the i ^1 

end of Vol. VII. to the close of the year 1892. In an Appendix 
is added : 

A. Opinions of the Court to the Government : 

B. Decisions of the Full Court, not hitherto reported : 

C. " " Single Judges, " 

D. Memorial Notices of Justices Preston and McCully, 
The Justices have revised their decisions and written their 

own head-notes : the Compiler has attended to press- revision and 
made the Index. 

Chapter 66 of the Laws of 1888 abolished the offices of Third 
and Fourth Associate Justices. Chapter 57 of the Laws of 1892 
made the Supreme Court appellate only, and transferred all 
other business to newly-created Circuit Courts. 

Honolulu, August, 1893. 



\ 



Achi In Re 216 

Afong, y Chun Hoy 313,499 

Ah Fook, adB Rex 265 

AhHung, " " , 491 

AhKiao, " " 466 

Ah Leong, v. Kee You 416 

Ah Ling, ads Shaw 267 

AhLum, '' Rex 377 

Ahio, V Aiau.. 70 

V Hayselden 439 

V Smith 420 

Aiau, ady Ahlo 70 

Aiona Bankruptcy of 302 

Akau, ads Bolte 743 

Alakea Street Widening of 122 

Alani, ads Rex 533 

Alee, V Wong Leong 442 

Allen, ade Thurston 391, 392 

Ami, " Magoon 191 

Angee, " Rex 259 

Appointment of Cabinet ..In Re 579 

Attorney General, v Hughes 609 

Auditor General, ads Minister Interior 129 

Austin, ads _ Chock Kem _ 688 

" '' HiloSugarCo 276 

" ...Kahula 54 

Ayers, v Mahuka _ 544 

Aylett, V Kea weamahi 320 

Bailey, ads. Peck 658 

Bankruptcy of Aiona 302 



vi. CASES REPORTED. 

Bankruptcy of Daniels 746 

'' Gouveia 253 

" Johnson 730 

Barnard, ads Mattoon and Horner 732 

Beckley, v Lucas.. 40 

Bishop, ads Hawaiian Grovt 102 

Board of Education, ads. .Knudsen 60 

Bolte, V Akau 742 

Boundaries of Kaohe 455 

" " Kapoino 1 

Bowler, ads Castle 366 

Brito, ads Gonsalves 255 

Brown, ads Hills 176 

" " Oahu Railway Co 163 

V Smith 677 

" V Spencer 542 

Bush, ads Rex 274 

In Re 221 

Cabinet see In Re _ 

Cartwright, v Ena 674 

'* ads Hawaiian Government 697 

Castle, ads Minister Finance 105 

" V Bowler 366 

Chapman, v Hawaiian Government 653 

Chee Wai, ads Rex 728 

Chin Hee, v Ho Kam Ye.. 285 

Chock Kem, v Austin _ 688 

Chong Chum, V Kohala Sugar Co 425 

Chun Hoy, ads Afong 313,499 

Chung Hoy, ads Yuen Chock 161 

Chung Young, ads Rex 156 

Cleghorn, v Opium Pills 461 

Colburn, v White 317 

Collector of Customs, v Opium Pills 461 

" " " ads. Peacock 531 

** '* Taxes. see Tax Collector 

Contract Laborers In Re 574 



CASES REPORTED. vu. 

Cook, V Dayton 8 

Corn well, ads Hawaiian Government 12 

Costa, ads Rex 552 

Cummins, ads Isenberg 237 

Damon, ads Macfarlane 19 

Daniels Bankruptcy of 746 

" ads Davies 88 

Davies, v Daniels 88 

" ads "- Olsson 43 

V Wilder S. S. Co ... 525 

Day, V Day 715 

Dayton, ads Cook _ 8 

" ads Mahu 101 

Dean, ads Wailuku Sugar Co 108 

Dismissal of Cabinet In Re 578. 

Duncan, v Wilder S. S. Co.... 411 

Election Law see In Re 

Electors " " " 

Ena, ads Cartwright 674 

Estate of Kamaka -. 535 

" Kanaina 627 

" Kealiiahonui 93 

" Kualii 612 

" Maalo - 5 

" Makee 639 

McBryde 472 

: ..Robinson , 391, 392 

see Bankruptcy of 

Fernandez, ads Rex 273 

Fong Kee, v .^.. Wilson 513 

Gaspar, ads -Rex 233 

Gay, ads " 468 

Gonsalves, v Brito _ 254 

Gouveia -... Bankruptcy of 253 

Gulick, ads Skinner 189 



a 
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vin. 



CASES REPORTED. 



Haalilio, ads Lunalilo Trustees . 

Hackfeld, ads Vierra . 

Hamauku, ads Kahoohuli 

Haumea, ads Rex 



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640 
436 

50 
280 

Hawn. Commercial Co. v.Waikapu Sugar Co 449,721 

343 
102 
697 
653 

12 
546 
308 
293 

16 
237 
439 
447 
335 
447 

91 
546 

176 
276 
201 
148 
285 
152 
732 
609 
308 
216 
122 
579 
221 
574 
578 



" " ads " " 

Government, v Bishop 

V Cartwright 

ads-.Chapman 1 

V Cornwell 

ads-.High 

ads_- Hutchinson Sugar Co 

ads.-Kekaha " ** 

V Luce 

Hotel Stables v Cummins 

Hayselden, ads Ahlo 

Heeia Agric. Co., v Henry ._ 

Herblay, v Norris 

Henry, ads Heeia Agric. Co 

** V Maikai 

High, V Hawaiian Govt 

Hills, V . - Brown > 

Hilo Sugar Co., v Austin 

V Mioshi 

V Tucker _ 

Ho Kam Ye, ads Chin Hee 

Hobron, ads * Rex •_ 

Horner, v Barnard 

Hughes, ads -- Attorney General 

Hutchinson Sugar Co Hawaiian Govt 

In Re---* Achi 

Alakea Street 

- Appointment of Cabinet - . 

Bush 

-Contract Laborers 

Dismissal of Cabinet 



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CASES REPORTED. 



IX. 



In Re Election Law 

Electors 



592, 



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Kaaa 

Kapahu 

Mahelona -. 

Majority of Legislature. . . 

Notaries Public .- 

Paakiki 

Paikuli - 

, Powers of Cabinet 

Qualification of Electors 






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'' Voters- 



Responsibility of Cabinet 

Ross 

Signature of Sovereign . - 

Stenographer's Charges . . 

Union Iron Works .. 

._ Voters _ -. 

Voters for Nobles 

See Bankruptcy of 

__ -. *' Boundaries of 

" Estateof _.. 

Ing Choi V UngSing 

Isenberg, v Cummins 

Joe, ads Rex 

Johnson Bankruptcy of 

Jones, V Norris 

V - Wight 

Kaaa In Re 

Kahai, v Kamai 

Kaheana, v Nalimu 

Kahoohuli. v.. Hamauku 

Kahookiekie, v Keanini 



593, 602 

663, 589 

600, 601 

298 

735 

297 

595 

561 

518 

680 

586 

600, 601 

563, 589 

589 

563 

566, 572 

478 

606 

459 

740 

589 

563 



498 
237 

199, 287 
730 
71 
614 
298 
694 

227, 271 

50 

310 



X. CASES REPORTED. 

Kahuhu, ads Kila 212 

Kahula, v Austin 54 

Kaiaikawaha, v Okuu 159 

Kailiahi, v Kepau 87 

Kailianu, v_ Lumai 256,508 

Kaiue, ads.-- Wailuku Sugar Co 537 

Kaka, ads _ Rex 305 

Kalakaua, v ..Parke 620,623 

Kalana, ads -Lloyd 355 

Kaleleku, ads .Puuku 77 

Kamai. ads Kahai — 695 

" V Trask 75 

Kamaka Estate of 535 

Kamakaohua, v Thow Choy 245 

Kan Wing Chew, v Wong Lung 187 

Kanaina _ Estate of 627 

Kanakanui, v... . Manini 710 

Kanamu, v Wilson 385 

Kaniku, v Monsarrat 229 

Kaohe _ Boundaries of 455 

Kaohimaunu, ads Mahoe 269 

Kapahu In Re 735 

Kapoino Boundaries of 1 

Kauhi, ads._ .. Mahoe 57 

'* ads Opunui 649 

Keahialoa, ads Liu Kong _ 511 

Kealiiahonui ._ Estate of 93 

Keanini, ads Kahookiekie 310 

Keaweamahi, ads Aylett 320 

Kee You, ads Ah Leong 416 

Kekaha Sugar Co., v Hawaiian Govt 293 

Kepau, ads Kailiahi 87 

Kiln, V ...Kahuhu 212 

Kimo Pake, v North German Ins. Co 725 

King, The See Rex 

Knudsen, v Board of Education 60 

ads Mika 196 

" V Stolz 81 



Ludloff, 
Lumai, 



Nakuina 231 

Beckley 40 



CASES REPORTED. xi. 

Kohala Sugar Co., ads Chong Chum 425 

Kualii • Estate of. 612 

Lau Kin Chew, ads_ Rex 370 

Leong Man, ** " 339 

Liilii, " " 199 

Liu Kong. V Keahialoa 611 

Llovd, V Kalana 354 

Loomens, ads Rex 10 

Lopez, 
Lucas, 

Luce, " Hawaiian Govt 16 

Perry 247 

Kailianu 256, 508 

Lunalilo Trustees, v Haalilio 640 

Maalo Estate of 5 

Macfarlane, v Damon 19 

" " McCandless 118 

'' '' ., Spencer 645 

" Waikapu Sugar Co 721 

Magoon, " Ami 191 

Mahelona In Re 296 

Mahoe, v _ Kaohimauna 269 

" " Kauhi 57 

Mahu, " ...-Dayton 101 

Mahuka, ads Avers 544 

Maikai, " Henry , 91 

Majority of Legislature. . . In Re 595 

Makee Estate of 639 

Manaku, v Moanauli 381 

" ads " 330 

Manini, ads Kanakanui 710 

May, V - Willis 178,218 

Mattoon, v _. Barnard 732 

McBryde ...Estate of 472 

McCandless, ads Macfarlane 118 

McChesney, ads Phillips 289 

Meier and Kruse, v Hawaiian Govt 293 



xii. CASES REPORTED. 

Mew Kung Tung, v Wong Ka Man 557 

Mika, V Knudsen '. 197 

Minister of Finance, v ..Castle 105 

" " ads . . Macfarlane 19 

*' Interior, y . . Auditor General 129 

V ..Papajkou Sugar Co 125 

Mioshi, ads Hilo Sugar Co.. . ^ 201 

Moanauli, v Manaku 330 

" ads " 381 

Mokunui, v Mokunui 360 

Monsarrat, ads. ..1 Kaniku 229 

Nakuina v Lopez 231 

Nalimu, ads.. Kaheana 227,271 

Nathaniel, v Pua 711 

Nawahine, v Dayton. 101 

Norris, ad.i ..Herblay 335 

" ads Jones 71 

North German Ins. Co ads. Ki mo Pake _ 725 

Norton, ads Thomas. 67 

Notaries Public In Re _ 561 

Oahu R. R. Co., v '.Brown 163 

Okuu, V Kaiaikawaha 159 

Olsson, V Da vies _ 43 

Opinions see In lie 

Opium Pills, ads Cleghorn 461 

Opunui, V Kauhi 649 

Paakiki In Re 518 

Paikuli.-.. " " 680 

Pantheon Stables, ads Williams 168 

Papaikou Sugar Co., ads. _ Minister Interior 125 

Parke, ads Kalakaua 620,623 

Peacock, v Collector 531 

Peck V Bailey 658 

Perry, v Ludloff - 247 

Phillips, V McChesney 289 

Pierce, ads _ Wong Leong 249 



CASES REPORTED. xiii. 

Poor, ads Rex 621 

Powers of Cabinet- In Re 586 

Pua, ads - " Nathaniel 711 

Puukii, V Kaleleku 77 

Qualifications, In Re see In Re 

Queen, The " Rex 

Regina " '' 

Responsibility of Cabinet. In Re 566,572 

Rex V Ah Fook 265 

" " Ah Hung 491 

** '* Ah Kiao 466 

" " Ah Luni 377 

*' " Alani 533 

** " Angee 259 

'' '' Bush 274 

" " CheeWai 728 

" '' Chung Young, g< al 157 

" '' Costa 552 

" " Fernandez 273 

" '' - Gaspar 233 

" " Gay 468 

" '• Haumea 280 

*• " Hobron and Shaw-. 152 

" " Kaka I-... 305 

" " Lau Kin Chew 370 

" " Liilii,efaZ 199 

" " Leong Man - 339 

" " Loomens 10 

" " - ..Poor 521 

" " Self - 434 

" " Sin Fook 185 

" '* ....Wansey.- 115 

" " William Joe, ^« a/ 199,287 

'' '' Young Quai 282 

Robinson Estate of 391,392 

Rose, V Trousseau 443 

Ross In Re 478 



BY THE 



SUPRBMB COURT 



07 T£[E 



HAWAIIAN ISLANDS. 



IN BANCO. 



■ ••• 



BOUNDARIES OF KAPOINO. 

Appeal from Boundary Comi^iissioner. 

Hearing Sept. 30, 1889. Decision, Dec. 11, 1889. 

JuDD, C.J., McCuLLY, Preston, Bickerton, Dole, JJ. 

The outlying boxmdariee of an Ahnpnaa having been settled, whatever 
land is not shown to be of the Hi, within the Ahnpnaa, belongs to the 
Ahnpnaa. 

A well considered judgment of a Boundary Oommissioner is entitled to 
great respect, and should not be set aside on slight grounds. 

It is impossible that there be an Hi within an Hi 

Opinion of the Majority of the Court, by Judd, C. J. 

This is an application by the Hawaiian Government to have 
the boundaries of the Hi of Kapoino, in the Ahupuaa of Waiehti, 
Island of Maui, settled. 

It is contested by the trustees of the Estate of Lunalilo, in 



2 . SEPTEMBER, 1889. 

whom is the title of Waiehu. The boundaries of Waiehu are 
settled, and whatever is not shown to be the Hi of Kapoino re- 
remains as part of the Ahupuaa of Waiehu. 

Testimony of persons familiar with the boundaries of lands in 
this Kingdom is becoming more and more difficult to obtain as 
the old Hawaiians die off, and appeals from Boundary Commis- 
sioners present questions of fact difficult to settle. The evidence 
of native residents is taken by the Commissioner in his district 
and reduced to writing, and the notes sent up to us on appeal. 

The Appellate Court, not having the witnesses before it, is de- 
prived of the means of forming a correct opinion as to the 
veracity and extent of knowledge of the witnesses, for on paper 
all witnesses appear equally well and equally credible. For this 
reason, a well considered judgment of a Commissioner of 
Boundaries is entitled to great respect, and should not be set 
aside on slight grounds. In the case before us, we have the tes- 
timony of several witnesses, the general effect of which will 
carry the boundaries of the Hi of Kapoino down to the sea, and 
embrace within its limits not only the taro lands which consti- 
tuted the main value of the land in early times, but a large 
quantity of comparatively worthless land, consisting of level 
land not then cultivated, and sand hills. The boundaries, as 
claimed by the petitioners after they leave the points which both 
sides concede to be the boundaries of the land in question, run 
straight to the sea, not following any ridge or gulch or any 
natural land marks. This fact, although not conclusive against 
the claim of the Government, is unusual unless some satisfactory 
reason is given for it. Only one witness positively limits the 
extent of this Hi as claimed by the trustees of the Estate of Lu- 
nalilo, contestant, but this witness, Kaaimalani, had been a 
konohiki of Waiehu for a number of years, and appears to know 
all the boundaries of the land in dispute, and the adjoining lands 
quite thoroughly. A careful perusal of the testimony on behalf 
of the petitioners will show that though certain as regards the 
land of Kapoino, it is uncertain as regards other lands adjoining. 
We think it far more likely that the original character of the Hi of 
Kapoino was mainly kalo land, and that it had a fishing right 



BOUNDARIES OF KAPOINO. 3 

on the sea; and that the reason that the witnesses for the peti- 
tioners have extended its boundaries to reach the sea, is on 
account of this fishing right, in order that it might be embraced. 
The witnesses for the petitioners speak of two His, Kanaio and 
Kahoana, as existing in the Hi of Kapoino, above the Govern- 
ment road. We are not aware of a case of an Hi within an Hi, 
and we think it impossible. No one is able to give the accurate 
boundaries of these His, if they are His, and some of the wit- 
nesses for the Government say that they were a part of Waiehu: 
if this be true, they cannot form a part of Kapoino. It appears 
to us that they are His belonging to the Ahupuaa of Waiehu, 
distinct for convenience only, and are not lli-kuponos, having 
an ownership distinct from that of the Ahupuaa ; but their ex- 
istence, even though the boundaries are not well ascertained, 
affords strong proof that Kapoino does not extend down further 
than to them, and certainly not beyond them to the sea. 

Upon careful reflection, we see no adequate reason for revers- 
ing the judgment of the Commissioner, and therefore aflfirm his 
decision. 

The Attorney-Qeneral, for petitioners. 

W, 0. Smithy for contestants. 

Dissenting Opinion of Preston and Bickerton, JJ. 

This matter comes here on appeal from a judgment rendered 
by the Boundary Commissioner of the Island of Maui, Second 
Judicial Circuit, in the matter of the settlement of the boundaries 
of the Ili-aina of Kapoino. 

The application for the settlement of the boundaries was made 
by J. F. Brown on behalf of the Hawaiian Government. 

A map and notes of survey were filed and identified by M. D. 
Monsarrat, surveyor, showing the boundaries as claimed by the 
Hawaiian Gi^vernment, and as claimed by the trustees of the 
Lunalilo Estate, who contest the Government claim. After 
hearing the evidence of Nuhiwa (k.), Lani (k.), Pupuka (k.), 
Kaaimalani (w.) and Auwae (k.), and an agreement being made 
by J. F. Brown, on behalf of the Hawaiian Government, and 
W. 0. Smith, on behalf of the trustees of the Lunalilo Estate, 



4 SEPTEMBER, 1889. 

that Kapoino Nui and Kapoino Iki should be considered as 
forming one land known as Kapoino, and the decision as to the 
land should cover both Kapoinos as if one land ; the Commis- 
sioner found the boundaries to be as claimed by the trustees of 
the Lunalilo Estate, and gave judgment accordingly, from which 
judgment the Hawaiian Government took an appeal to this 
Court. 

This must be settled on the evidence as sent up by the Commis- 
sioner : as we have not any decision before us setting forth the 
reasons for finding as he did, it is clear he based his decision on 
the evidence of Kaaimalani (w.), alone, for her's is the only 
evidence that tends to sustain the claim of the Lunalilo Estate. 
In fact, in nearly all points her evidence is directly opposed to 
that of the other four witnesses, whose evidence clearly sustains 
the claim of the Hawaiian Government, viz. : that the land of 
Kapoino runs to the sea on the north to a point named Papa- 
moku, and on the south to a point named Kalua, and includes 
the lands (or localities j known as Kanaio and Kahoana ; cer- 
tainly, the evidence of Auwae is contradictory, but there still 
remains the evidence of Nuhiwa, Lani and Pupuka, which is 
positive and stands unshaken. 

It is claimed, on behalf of the Government, that the places 
known as Kanaio and Kahoana should at any rate be included 
within the boundary of Kapoino ; we must take the evidence as 
a whole, and not take only part and ignore the remainder ; it is 
as positive that Kapoino runs to the sea, as it is that these places 
are within its boundaries. 

It is claimed for the Lunalilo Estate, that it appears from the 
weight of the testimony that Kanaio and Kahoana extend across 
Kapoino from Manokohala to Hananui, thus cutting Kapoino 
oif completely from makai. We do not find that there is any 
positive testimony as to the boundaries of Kanaio and Kahoana* 
Kaaimalani does say: '^ Kahoana and Kanaio had specific 
boundaries of their own," but she does not describe them ; the 
evidence does not show clearly that these lands (or localities) 
cut Kapoino off completely from makai ; on the contrary, the 



ESTATE OF MAALO. 5 

weight of evidence to our minds is strongly in favor of the claim 
of the Government. 

We are of the opinion the decision of the Boundary Commis- 
sioner should be reversed and the boundary of Kapoino be as 
claimed by the petitioners and set forth in their map and 
survey. We therefore respectfully dissent from the opinion of 
the majority of the Court. 



- ESTATE OP MAALO. 

Exceptions From Fourth Circuit Court. 

Hearing, October 3, 1889. Decision, November 21, 1889. 

JuDD, C.J., McCuLLY, Preston, Bickerton, Dole, JJ. 

A decision by which a Will was admitted to Probate was filed Feb. 13, 
1889, which was appealed from. The time for perfecting the appeal 
was Feb. 23. The Certificate of Appeal of the Probate Judge recited 
that the appellant had also filed a bond in the sum of $100 for further 
costs, and is entitled to try his oause before a Jury, Upon the 
transcript of the record the Probate Judge endorsed the following: 
**Feb. 19, 1889, Appellant filed his within notice of appeal together 
with his bond for costs.'' The bond itself, dated Feb. 19, was endorsed 
" Filed March 6, 1889, for Feb. 19, 1889," and signed " J. Hardy, Cir. J." 

Held, these official acts of the Judge, required by law, are entitled to 
greater credence than his endorsement of a bond, and outweigh it in 
case of the apparent inconsistency. Appeal allowed, as having been 
perfected in time. 

Opinion op the Court, by Dole, J. 

The will of S. Elia Maalo was admitted to probate by the 
Honorable J. HardyJ Circuit Judge of the Fourth Judicial 
Circuit. Kuhio Elia, claiming to be a son of the decedent, 
appealed from this decision to the Circuit Court for a trial by 
jury. At the Circuit Court the counsel for the proponent of the 
will moved the Court that the appeal be dismissed upon certain 
grounds specified in the motion. The Court granted the motion 



6 OCTOBER, 1889. 

and dismissed the appeal upon the first ground stated in the 
motion, to wit : that the appellant did not file his bond for 
costs on appeal within ten days from the decision appealed 
from. This ruling was excepted to by appellant's counsel, and 
a bill of exceptions presented and allowed. 

It appears by the bill of exceptions that the Court not only 
held that the bond was not filed within the time fixed by law, 
but that a bond presented to Judge Hardy, presumably within 
the ten days, was insufficient because it was not signed by the 
principal. 

The consideration by the Court of this latter point was 
excepted to by appellant's counsel, upon the ground that the 
facts were not placed before the Court either by affidavit or by 
the production of such bond. 

We find, by examination of the papers in the case, which are 
made a part of the bill of exceptions, that there is nothing in 
the certificate of appeal from Judge Hardy or the certified c®py 
of the minutes of the proceedings before him, sent up to the 

« 

Circuit Court, that throws any light upon this question. 
Neither do we find any affidavit or statement of evidence among 
the papers in the case supporting the theory of a bond not 
signed by the principal. 

We do not see that this question affects in anywise the point 
at issue, to wit, the dismissal of the appeal; for to enable the 
appellant to profit by this first bond, which is not on file, it 
would be incumbent on him to show, by affidavit or otherwise, 
its presentation within the legal time; as this has not been done, 
the reference to it by the Court was unfounded and may be 
regarded as mere surplusage. 

The real issue raised by the first ground of the motion to dis- 
miss, was whether any bond for costs on- appeal had been filed 
within the legal time. The evidence on this point is the bond 
itself, which is on file, and the report of the Circuit Judge. This 
bond, which is dated February 19th, 1889, is endorsed as fol- 
lows : '' Filed March 6, 1889, for February 19th, 1889. ( Sig ) 
J. Hardy, Cir. J." The decision admitting the will to probate 
having been made on the 13th day of February, it was neces- 



ESTATE OF MAALO. 7 

sary that the bond of appeal should have been filed on or before 
the 23d day of February; consequently it was too late if it was 
not filed until the 6th day of March. But we find, upon refer- 
ring to the certificate of appeal, the following statement : " He 
( the appellant ) has also filed a bond in the sum of $100 ( one 
hundred dollars ) for further costs, and is entitled to try his 
cause before a jury, etc.;" also upon reference to the transcript 
of the record and proceedings before the Circuit Judge, we find 
the following: "Feb. 19th, 1889. Appellant filed his within 
notice of appeal together with his bond for costs." 

These two documents, to wit, the certificate of appeal and the 
transcript of the record and proceedings before the Circuit 
Judge, are both official acts of the Circuit Judge, and are 
required by law; and we feel that they are entitled to greater 
credence than the Judge's endorsement of a bond, and must 
outweigh such an endorsement in case of an inconsistency such 
as appears in this case : 

Therefore, as by these ofiicial documents of the Circuit Judge 
it appears that the appellant's bond was filed within the time 
required by law, we are of the opinion that he is entitled to his 
appeal, and overrule the decision of the Circuit Court dismis- 
sing such appeal. 

J. H. Barenaha, for petitioner. 

A. Rosa, for contestant. 



8 DECEMBER, 1889. 



COOK V8. DAYTON, Replevin : SAME vs. SAME, Assumpsit. 

Appeal from Police Justice of Honolulu. 

Hearing, Dec. 11, 1889. Decision, Dec. 12, 1889. 

JuDD, C.J., McCuLLY, Preston, Bickerton, Dole, JJ. 

On the 27th March, 1888, a volantary deed was made by Cayford to Cook, 
of personal property, upon certain trusts in favor of his, Cayford^s, 
wife. A judgment was recovered by Colbum against Cayford, 25th 
April, 1889. Cayford was adjudged bankrupt Aug. 20, 1889, and 
defendant was appointed assignee. The action was by the Trustee 
to recover the property from the assignee in bankruptcy. 

Held, that as Cayford was not indebted to any one when he made the deed, 
and as Colbum did not become a creditor until after the deed was 
signed, the case fsdls within the principle of Dowseti vs. KapUau^ 3 
Hawn., 709, that " a voluntary conveyance, not fraudulent in fact, is 
good as to subsequent creditors, though void as to antecedent 
creditors." 

The deed held good, and judgment for plaintiff affirmed. 

Opinion of the Court, by Preston, J. 

This is an appeal from the decision of the Police Justice of 
Honolulu, whereby he gave judgment for the plaintiff in both 
the above cases. 

On the 27th of March, 1888, Richard Cayford executed a 
voluntary deed, whereby he granted and transferred to John 
Cook the furniture, implements, utensils and tools of whatever 
description and kind then owned by Cayford, and being in or 
upon or in any way connected with that certain dwelling-house 
and lot then occupied by him situate on Alakea street, and also 
one brake and harness and one horse, said property being par- 
ticularly specified in the schedule thereunder, upon certain 
trusts in favor of his (Cayford's) wife for her life. This deed 
was not recorded until the 10th of January, 1889. On the 17th 
of December, 1888, one Marcus K. Colburn commenced an action 



COOK V8. DAYTON. 9 

in the Supreme Court against the said Cayford for the recovery 
of damages through the loss of a horse, alleged to have been occa- 
sioned by the malpractice of the said Cayford as a veterinary 
surgeon : a verdict was rendered in the said action on the 25th 
April, 1889, for the sum of three hundred ($300) dollars, which 
judgment was duly entered up and the amount is still unpaid. 
Cayford was adjudged bankrupt on his own petition on the 20th 
of August, 1889, and the defendant was appointed assignee on 
the 30th of the same month. At the time of the adjudication, 
the aforesaid brake and harness was in the custody of the 
Marshal under an attachment, and was delivered to the defend- 
ant. On the 24th of June, and before the bankruptcy, certain of 
the furniture comprised in the aforesaid deed was sold at auction 
by James F. Morgan, and the proceeds, amounting to one hun- 
dred and nineteen and 30-100 (119.30) dollars were paid on the 
demand of the defendant to him by Morgan. It appears from 
the testimony in the lower Court that at the time of the execu- 
tion of the deed, Cayford was solvent and was not indebted to 
any person whatever. Cook, the trustee, never took possession 
of the property. 

The defendant appealed from the decision of the Police Court 
on the following points of law : First, " Was not said trust deed 
in fraud of creditors and therefore void ? " Second, " Does not 
said deed come under the provisions of Section 1263 of the Com- 
piled Laws, page 409?" 

By the Court. 

It being admitted that Cayford, at the time of the execution 
of the deed, was not indebted to anybody, and Colburn not be- 
coming a creditor of the bankrupt until after the deed was 
signed, this case falls within the principle of Dowsett vs. Kapi- 
lau, 3 Hawn., 709, where it is stated that : " The law is likewise 
plainly settled that a voluntary conveyance not fraudulent in 
fact is good as to subsequent creditors, though void as to ante- 
cedent creditors ; " we are therefore of the opinion that the deed 
is not a fraud as against the assignee in bankruptcy. 

With regard to the second point. Section 1263 of the Compiled 



10 DECEMBER, 1889. 

Laws has no application to this case ; it merely requires mort- 
gages of chattel property to be recorded ; this deed is plainly not 
a mortgage. Had it been proved that the bankrupt was indebted, 
at the time of the execution of the deed, to any person, our deci- 
sion might have been different. We think that it might fairly 
be contended that the deed was intended to defeat or delay credi- 
tors. We look upon the deed with great suspicion, and regret 
that under the circumstances of the case we are compelled to 
sustain the decision of the Court below. 

The judgment of the Court "below is affirmed. 

W, 0. Smith, for plaintiff. 

A, Rosa^ for defendant. 



THE KING V8. ALBERT LOOMENS. 

Exceptions. 

Hearing, December 11, 1889. Decision, January 2, 1890. 

JuDD, C.J., McCuLLY, Preston, Btckerton, Dole, JJ. 

A person holding a CommisBion as a Special Constable, unpaid, is not 
thereby disqualified from sitting as a Juror on a Criminal TriaL 

Opinion of the Court, by Preston, J. 

The prisoner, Albert Loomens, w-as convicted at the last 
October Term by the unanimous verdict of the jury, of the 
crime of treason. 

A motion was subsequently made on behalf of the defendant 
for a new trial, on among other grounds, that "Two of the jury- 
men, to wit, M. N. Sanders and T. M. Starkey, held commis- 
sions as policemen of the police force of the Hawaiian Govern- 
ment." 

The Chief Justice overruled the motion and the defendant's 
counsel excepted. 

On the argument of the bill of exceptions, it was conceded 



THE KING vs. LOOMENS. 11 

that T. M. Starkey did not hold a commission, and the argu- 
ment was confined to the above quoted point only with respect 
to Sanders. 

Previous to the juryman Sanders being sworn on the panel, 
he was examined on the voir dire as to his indifference and was 
accepted by the defendant, but it is alleged that the fact of the 
juryman holding a commission as constable was not then known 
to the defendant. 

It appears by the affidavit of the Marshal that Sanders held 
a commission as a special constable without pay and conditioned 
that he should not be called upon to render any service except in 
case of an uprising or insurrection or other grave emergency. 

By the Court. 

The only qualification of jurors by law is that they shall, 
in the opinion of the Chief Clerk of the Supreme Court, or the 
Clerks of the Circuit Courts respectively, or of some Judge of 
such Courts, be fit to serve as jurors. 

The only persons exempted by statute are postmasters and 
their clerks, and by a recent Act certain officers and members 
of the Honolulu Fire Department. 

It has been the practice for the Courts, in their discretion, to 
excuse officers of the Government and regular paid constables 
from service on juries, especially in criminal cases, but this dis- 
cretion has been exercised also in excusing persons whom the 
Court, on examination, thought might be biased. 

It may be that some Judges would, in their discretion, excuse 
a juryman in the position of the one in question, but it could 
not be on the ground that he was disqualified by law. In fact, 
this juryman was not bound by virtue of his commission to do 
any more than any other citizen might be called upon to do in 
case of emergency. 

The verdict of the jury was unanimous, and we see no reason 
for disturbing it. 

The exceptions are overruled. 

A. P. Peterson and F, M, Hatch, for the Crown. 

A, Rosa, for the defendant. 



12 DECEMBER, 1889. 



HAWAIIAN GOVERNMENT vs. WILLIAM H. CORNWELL. 

Exceptions. 
Hearing, December 23, 1889. Decision, January 7, 1890. 

JuDD, C.J., McCuLLY, Preston, Bickerton, Dole, JJ. 

A lease of land, the property of the Gtovemment, exceeding $900 in value, 
made subsequent to the enactment of the statute of 1876, is invalid 
when it is made privately and not at public auction, after advertise- 
ment, and as prescribed by the statute. 

It is not made valid by the written consent of the Minister of the Interior 
to an assignments 

Third parties acquire no title by the payment of rent. 

An action of ejectment may be brought, although rent has been paid in 
advance of the time of bringing the action. 

The exceptions are overruled. 

Opinion of the Court, by McCully, J. 

This action was tried by Mr. Justice Dole, the jury having 
been waived, who gave judgment for the plaintiff for the pos- 
session of the premises with the nominal damages of one dollar. 

The facts upon which the matter depends are not controver- 
ted. They are as follows: 

April 23d, 1883, a lease was made on behalf of the Hawaiian 
Government by John E. Bush, then the Minister of the Inte- 
rior, to Her Majesty Queen Kapiolani, of the lands of Waia- 
koa, Pulehuiki and Kamehameiki, in the island of Maui, for 
the term of thirty years, at the annual rental of one hundred 
dollars. The area of the lands exceeds seven thousand acres, 
worth in 1883 say two dollars per acre, and for rental from $500 
to $1,000 per year. 

The lease was made privately, not being advertised or offered 
at public auction. January 28th, 1887, permission, endorsed 
on the lease, was granted by L. Ahold, Minister of the Interior, 



HAWAIIAN GOVERNMENT vs. CORNWELL. 13 

to the lessee, "to transfer and assign this lease to W. H. Corn- 
well, under the same terms and conditions as herein cited." 

January 28th, 1887, sub-lease was executed to W. H. Corn- 
well of these demised lands for the term of twenty years at an 
annual rental of seven hundred dollars, with also some right of 
pasturage reserved, the sub-lessee to also pay the rental to the 
Government. 

October 13, 1888, W. H. Cornwell paid into the Interior De- 
partment $50, semi-annual rent for six months in advance from 
October 17 (to April 17th, 1889.) 

January 16th, 1889, demand of possession for the Interior 
Department was made on W. H. Cornwell. 

March 6th, 1889, service of writ in this suit was made on 
the defendant, W. H. Cornwell. 

Two questions are raised by the bill of exceptions; first, as to 
the validity of the lease of the Government to Queen Kapiolani; 
and second, as to the right to bring the action before the time 
had expired for which the Government had received its ad- 
vance payment. 

The ground alleged for the invalidity of the lease is that it 
was not made in accordance with the requirements of the sta- 
tute, which is Chapter XLIV. of th^ Laws of 1876, found on 
page 11, Comp. Laws, that "All sales or leases of Government 
lands shall be made at public auction, after not less than thirty 
days' notice by advertisement, with description of the area, sit- 
uation, etc., in two or more newspapers published in Honolulu 
in both the Hawaiian and English languages, excepting lands 
and portions of lands of less than three hundred dollars in 
value." 

It is only justice to the counsel for the defendant to say that 
they do not strongly contend that a lease made in contraven- 
tion of the provisions of this statute would be valid. In the 
written brief presented it seems to be ignored. In the oral ar- 
gument there was some attempt to hold that the unlawfulness 
in making the lease had been cured by the subsequent endorse- 
ment of another Minister of the Interior of permission to make 
a apeoific assignment to a sub-lessee, and by the receipt of pay- 



14 DECEMBER, 1889. 

ments of rent. The authorities cited do not apply to the case 
of a public officer proceeding contrary to law. 

We are of opinion that it is too plain for argument that this 
lease was made without authority of law and in contravention 
of the law. The reason of the statute is plain. It was enacted 
to restrict a power which had previously been vested in the 
Minister of the Interior, by and with the authority of the King 
in Cabinet Council, to lease, sell or otherwise dispose of the 
public land in such manner as he may deem best. Sec. 42 of 
the Civil Code. It was intended and has well served to pre- 
vent such bargains of improvidence or corruption as the pres- 
ent case is an example of. In effect, it is a matter of public 
notoriety that the open competition frequently secures for the 
Government higher rates than good offers upon which as an up- 
set price the fee or lease may be put up. 

. And equally it is clear that the invalid lease cannot be 
"built up" into validity by the leave given to assign it, and by 
receiving rents from term to term. The law is mandatory. 
The acts of the Department in this instance have set it aside. 

The language of Mr. Justice Story, in Johnson vs. United 
States, 5 Mason, 441, may be cited here: "The act of a public 
officer in violation of the dijties of his office, which duties con- 
stitute a part of the vital arrangements of the Government, 
cannot be permitted to have any legal effect by way of defense 
to those who have participated in the violation and encouraged 
and aided it. I hold it most clear that the acts of a public offi- 
cer beyond the scope of his powers and in violation of his pub- 
lic duties are, in such cases at least, utterly void." 

The second ground, that this action would not lie, having 
been brought before the expiration of the time for which rent 
had been taken in advance, must be treated on the principle 
above expressed, that no act of the Minister can make the in- 
valid lease valid. The payment of the rent is a payment on 
the lease. The lease being invalid, it cannot then be considered 
a payment on an oral permission given under some general 
power of control of the Government lands vested in the Minis- 
ter. His is a power to lease land exceeding $800 in value by 



HAWAIIAN GOVERNMENT vs. CORNWELL. 15 

an offering at public auction after advertisement with descrip- 
tion given. The construction that some general power would 
permit him to authorize a tenancy upon private terms would 
defeat the purpose of the statute, which was to restrict to the 
public and competitive mode. 

But is there an estoppel by the rent accepted in advance? An 
answer to that would be that the statute is set aside ifor the 
time, and that the rent might be kept always paid in advance. 
The rule of law which might apply in the case of a private party 
accepting rent upon an invalid lease, being held to have cre- 
ated an oral tenancy at will, is not to be considered at all in 
this case where a statute exists intended to restrict and define 
the action of a public officer. 

Likewise the claim that the sub-lessee has acquired a right 
to hold until the expiration of the term he has paid for. His 
right to have the money repaid pro rata the unexpired time is 
distinct from a- right to hold the land. We may be allowed to 
remark here, that a tender to refund the money or a short delay 
in bringing the action, meantime giving notice that no further 
rent payment would be received, would have deprived the de- 
fendant of the chief ground on which his defence has been 
made. The judgment of the Trial Justice, who would allow 
only nominal damages on the ground that the defendant's occu- 
pation was by a colorable lease and with the actual consent of 
the plaintiff, allows the defendant all the equity of his position. 

We mav be allowed to make the further observation that a 
lease or a deed of conveyance from the Government, which the 
statute requires shall be made only upon the performance of 
certain acts, should contain a recital of the due performance 
of them and of the time and manner thereof. The absence of a 
recital should advise the grantee, lessee or assignee that the le- 
gal conditions may not have been performed. 

The exceptions are overruled. 

C. W, Ashfordy Attorney-General, and A, P. Peterson, his dep- 
uty, for Hawaiian Government. 

Paul NeuTiuiTm and C. L. Carter, for defendants. 



16 DECEMBER, 1889. 



THE HAWAIIAN GOVERNMENT vs. W. S. LUCE ; FRANK 

BROWN, GarniBhee. 

Appeal from Order op Judd, CJ. 

HEARiNa, December 23, 1889. Decision, January 9, 1890. 

Judd, C.J., McCully, Preston, Bickerton, Dole, JJ. 

The oomplaint of the ^* Hawaiian Goyemxnent by Clarence W. Ashford, 
Attomey-Gteneral of the Kingdom," was signed " The Hawaiian Gov- 
ernment by Clarence W. Aahford, Attomey-Gtoneral, by A P. Peter- 
son, Plaintifrs Attorney.*' The complaint was sworn by A P. Peter- 
son, " As Attorney for and on behalf of the Plainti£&" On plea in 
abatement, the Attorney-General appeared 

Held, that the Act of 1888, To provide for the bringing of snits by or 
against the Hawaiian Government, was complied with, and that an 
Attorney oonld verify the complaint by oath in behalf of the Plaintiff, 
bnt he may be required to show his authority. The appearance of the 
Attorney-General in the case was an assurance that the suit was in 
fact instituted by the Government 

Plea held bad. 

Opinion of the Court, by Dole, J. 

The defendant pleaded in abatement of the action, that the 
complaint is not signed as required by law and is not the com- 
plaint of the Hawaiian Government, and that there is no warrant 
or authority of law for an action to be filed on behalf of the 
Hawaiian Government by an attorney other than the Attorney- 
General. The body of the complaint opens with the following 
words: "The undersigned, the Hawaiian Government, by 
Clarence W. Ashford, Attorney-General of the Kingdom, plaintiff 
herein, complains " etc., and is signed : " The Hawaiian Gov- 
ernment by Clarence W. Ashford, Attorney-General, by A. P. 
Peterson, plaintiff's attorney." The complaint is sworn by A. 
P. Peterson " as attorney for and on behalf of the plaintiff," 



HAWAIIAN GOVERNMENT vs. LUCE. 17 

The decision appealed from, overruling the plea in abatement, 
is as follows : 

" This suit is brought in the form required by the statute of 
1888. The plaintiff is the Hawaiian Government by the Attor- 
ney-General. Though the complaint is attested by the oath of 
the attorney who acts for the Attorney-General, there is here no 
delegation of authority to one unauthorized by the statute to 
bring a suit. It is not as if the suit had been brought by the 
Hawaiian Government by A. P. Peterson, plaintiff's attorney. 

" I do not aee the necessity of the Attorney-General signing 
and swearing to every complaint of the Government in person, 
if indeed any oath is necessary to such a complaint, where the 
action is brought by tl^e Attorney-General, ex-oflScio. And 
there is nothing in the law to prevent the Attorney-General 
appearing by counsel in a civil action of the Government. De- 
fendants in these cases ought to be assured that the suit was in 
fact instituted by the Government. In the case before me, the 
appearance of the Attorney-General on this plea is a sufficient 
assurance. 

" This was the view taken by the Court in Commonwealth vs. 
Conn. R. R. R. Co., 15 Gray, 447 : After the Attorney-General 
has appeared in the Court of Common Pleas and authorized the 
further prosecution of an action, there pending on appeal, com- 
menced in the name of the Commonwealth in a Police Court, to 
recover a penalty, the defendant cannot object that the suit was 
instituted and prosecuted in the Police Court without the au- 
thority or knowledge of any public prosecutor. 

" I therefore overrule the plea and the defendant may answer 
in ten days." 



The case comes to us on the defendant's appeal from this 
decision. 

It seems to us that the complaint is within the "Act to pro- 
vide for the bringing of suits by or against the Hawaiian Gov- 
ernment." The requirement of the statute in the case of a 
suit by the government, is that the Attorney-General may bring 
and maintain such suits and that they ^' shall be entitled in the 
2 



18 DECEMBER, 1889. 

name of the Hawaiian Government by the Attorney-General of 
the Kingdom against the party or parties or thing Bued as 
defendants or respondents." 

Section 1099 of the Civil Code provides that every civil action, 
hereafter to be tried in any of the courts of record of this King- 
dom, shall be commenced by petition, which petition shall be 
verified by the oath of the plaintiff, or some one in his behalf, 
deposing to the best of his knowledge and belief. Under this 
statute it has become a matter of accepted practice that attor- 
neys at law may sign such petitions for their clients as well as 
verify them by oath. The law for bringing suits by the Hawa- 
iian Government does not provide that the petition of the Hawa- 
iian Government shall be signed and sworn by the Attorney- 
General, but simply that he is competent " to bring and main- 
tain " such suits, and that they must be '^ entitled in the name 
of the Hawaiian Government by the Attorney-General of the 
Kingdom." As long as the latter requirement is observed, as 
we consider it has been in this case, the Attorney-General may 
bring the action through counsel according to the recognized 
practice, and such counsel, as in the case of other suitors, may 
sign the petition and verify it under oath in behalf of the plain- 
tiff, but, also as in other cases, he may be required to show his 
authority. 

It seems to us that this conclusion is strongly supported by 
our practice in regard to suits brought by guardians, as settled 
by the late case of Meek vs. Aswan, 7 Hawn, 750. The law 
requires that guardians shall demand and sue for debts due 
their wards, and appear for and represent them in all pro- 
ceedings except where a guardian ad litem or next friend is 
appointed for that purpose. The decision in Meek vs. Aswan 
decided that suits brought by guardians on behalf of their wards 
must be entitled in the name of the wards, an exactly analogous 
status to that of suits by the Hawaiian Government under the 
statute, and yet it would hardly be contended that guardians 
may not bring and maintain their ward's actions through coun- 
sel as in the case of other litigants. 

Upon these grounds as well as those set forth in the decision 



MACFARLANE vs, DAMON. 19 

appealed from, we confirm such decision, except as to the allow- 
ance to the defendant to answer in ten days, for it appears that 
the defendant since the decision appealed from filed his answer 
of the general issue. The case may therefore be placed on the 
calendar of cases for the present January Term. 

A. P. Peterson^ Deputy Attorney-General, for plaintiff. 

W, A, Whiting and F, M. Hatch ^ for defendants. 



G. W. MACFARLANE vs. S. M. DAMON, Minister of 

Finance. 

Question Reserved by Judd, C.J. 

Hearing, December 23, 1889. Decision, February 26, 1890. 

Judd, C.J., McCully, Preston, Bickerton, Dole, JJ. 

(Mr. Justice Preston died on January 17, 1890, between the 

hearing and decision.) 

The reBpondent refused to pay the salary of the relator as Chamberlain 
to HIb Majesty. 

Held, that the appointment of Chamberlam was jiersonal to His Majesty, 
an<i did not require the approval of the Cabinet 

Held, that the salary of office follows the title to it 

The Writ of Mandamus is made absolute. 

Opinion of the Court by McCully, J. : Dole, J., Dissenting. 

The petitioner for the writ of mandamus alleges that the 
respondent, Samuel M. Damon, is the Minister of Finance, and 
as*such has charge of the disbursements of the Public Treasury; 
that in the appropriation bill for the current biennial period 
there was appropriated for the pajrment of His Majesty's Cham- 
berlain the sum of six thousand dollars. That during said 
period, to wit, on October Ist, 1888, His Majesty appointed 
under the great seal of the Kingdom and commissioned the 



20 DECEMBER, 1889. 

petitioner his Chamberlain, and that the petitioner has since 

held and now holds the said office of Chamberlain. | 

That on July 23d, 1889, and at other times, your petitioner 
has requested and demanded of the said Minister of Finance 
the payment of the said salary, but that he undutifuUy and 
unlawfully refused and still refuses to pay the same or any part 
thereof, alleging as his reason that the Cabinet had not sanc- 
tioned the appointment of your petitioner to the office of 
Chamberlain, and that said appointment does not meet with 
the approval qf the Cabinet, all of which more fully appears by 
copies of correspondence annexed. 

But the petitioner avers that he is His Majesty's Chamber- 
lain, and entitled to the salary appropriated by the Legislature 
for that office, and that there is now due to hini the sum of 
three thousand dollars, to wit, two hundred and fifty dollars 
monthly for the twelve months from the first of October, 1888, 
to November 1st, 1889. The petitioner avers his belief that 
there are now and at all times have been sufficient money in 
the Treasury from which this salary might have been paid. 

The respondent makes return, in substance, as follows : 

1. He admits that as such Minister of Finance he has charge 
of the public funds of the Kingdom, and has had at all times 
during the year last past sufficient funds available to pay the 
claim of the petitioner. 

2. To so much of said writ as commands this respondent to 
pay to said petitioner the amount appropriated for the salary of 
His Majesty's Chamberlain, from the first day of October, 1888, 
to the 28th day of B^ebruary, 1889, this respondent represents 
and shows unto the Court that in an action in this court 
entitled, "In the matter of the application of Greorge W. 
Macfarlane for a writ of mandamus, vs. W. L. Green," the said 
petitioner did on the 6th day of May, 1889, in and by his peti"- 
tion duly filed, seek the payment from said W. L. Green, the 
then Minister of Finance, of the sum of $1,250.00 ( being the 
amount alleged by said petitioner to be due to him as salary ae 
such Chamberlain in respect of the time between the dates last 
aforesaid.) And that on the said 6th day of May, in pursuance 



MACFARLANE vs. DAMON. • 21 

of said petition, an alternative writ of mandamus was issued out 
of this Honorable Court to and against the said W. L. Green, 
Minister of Finance as aforesaid, commanding him to pay to 
said petitioner said amount of 11,250.00, or to show cause before 
the Honorable Edward Preston, one of the Justices of this 
Honorable Court, on the 8lh day of May, 1889, why he had not 
paid said amount. That on the Slst day of May, 1889, said 
Wm. L. Green, Minister of Finance, as aforesaid, filed in this 
Honorable Court his return to said alternative writ of man- 
damus, wherein he did show cause why he had not paid said 
sum to said petitioner, and did pray that said alternative writ, 
so issued and directed to him, as aforesaid, be dismissed. And 
that the said cause having been then and there submitted for 
the decision of said Justice upon said alternative writ and the 
return thereto, the said Justice did thereafter, to wit, on the 
12th day of June, 1889, render and file his decision in said 
cause, wherein and whereby the said Justice did consider and 
adjudge that the said petitioner had not shown himself entitled 
to the payment of said salary so claimed by him as aforesaid, 
and did refuse ^o issue a peremptory writ against the said 
Minister of Finance to compel the payment thereof; to the 
records and files, in which said last mentioned cause, this 
respondent especially refers this Honorable Court herein, and 
makes a part of this, his return. 

3. And that the judgment of said Justice and Court so rend- 
ered on said 12th day of June, 1889, still stands and obtains as 
a valid and decisive adjudication of the claim of said petitioner 
to said salary, in respect to the time between said 1st day of 
October, 1888, and the 28th day of February, 1889, inclusive. 

4. And said respondent not waiving the above defense, or 
any part thereof, but insisting thereon as a valid defense to the 
alternative writ issued herein, especially as refers to so much of 
petitioner's claim herein as was adjudicated as aforesaid, doth 
further represent unto this Honorable Court, as follows : 

5. That he denies that said G. W. Macfarlane was appointed 
as His Majesty's Chamberlain on the Ist day of October, 1888, 
or at any other time, and denies that said George W. Macfarlane 



20 DECEMBER, 1889. 

petitioner his Chamberlain, and that the petitioner has since 
held and now holds the said of&ce of Chamberlain. 

That on July 23d, 1889, and at other times, your petitioner 
has requested and demanded of the said Minister of Finance 
the payment of the said salary, but that he undutifully and 
unlawfully refused and still refuses to pay the same or any part 
thereof, alleging as his reason that the Cabinet had not sanc- 
tioned the appointment of your petitioner to the office of 
Chamberlain, and that said appointment does not meet with 
the approval qf the Cabinet, all of which more fully appears by 
copies of correspondence annexed. 

But the petitioner avers that he is His Majesty's Chamber- 
lain, and entitled to the salary appropriated by the Legislature 
for that office, and that there is now due to him the sum of 
three thousand dollars, to wit, two hundred and fifty dollars 
monthly for the twelve months from the first of October, 1888, 
to November 1st, 1889. The petitioner avers his belief that 
there are now and at all times have been sufficient money in 
the Treasury from which this salary might have been paid. 

The respondent makes return, in substance, as follows : 

1. He admits that as such Minister of Finance he has charge 
of the public funds of the Kingdom, and has had at all times 
during the year last past sufficient funds available to pay the 
claim of the petitioner. 

2. To so much of said writ as commands this respondent to 
pay to said petitioner the amount appropriated for the salary of 
His Majesty's Chamberlain, from the first day of October, 1888, 
to the 28th day of B^ebruary, 1889, this respondent represents 
and shows unto the Court that in an action in this court 
entitled, "In the matter of the application of George W. 
Macfarlane for a writ of mandamus, vs, \y. L. Green," the said 
petitioner did on the 6th day of May, 1889, in and by his peti*- 
tion duly filed, seek the pa3anent from said W. L. Green, the 
then Minister of Finance, of the sum of $1,250.00 ( being the 
amount alleged by said petitioner to be due to him as salary as 
such Chamberlain in respect of the time between the dates last 
aforesaid.) And that on the said 6th day of May, in pursuanoe 



MACFARLANE vs. DAMON. • 21 

of said petition, an alternative writ of mandamus was issued out 
of this Honorable Court to and against the said W. L. Green, 
Minister of Finance as aforesaid, commanding him to pay to 
said petitioner said amount of $1,250.00, or to show cause before 
the Honorable Edward Preston, one of the Justices of this 
Honorable Court, on the 8lh day of May, 1889, why he had not 
paid said amount. That on the 31st day of May, 1889, said 
Wm. L. Green, Minister of Finance, as aforesaid, filed in this 
Honorable Court his return to said alternative writ of man- 
damus, wherein he did show cause why he had not paid said 
sum to said petitioner, and did pray that said alternative writ, 
so issued and directed to him, as aforesaid, be dismissed. And 
that the said cause having been then and there submitted for 
the decision of said Justice upon said alternative writ and the 
return thereto, the said Justice did thereafter, to wit, on the 
12th day of June, 1889, render and file his decision in said 
cause, wherein and whereby the said Justice did consider and 
adjudge that the said petitioner had not shown himself entitled 
to the payment of said salary so claimed by him as aforesaid, 
and did refuse ^o issue a peremptory writ against the said 
Minister of Finance to compel the payment thereof; to the 
records and files, in which said last mentioned cause, this 
respondent especially refers this Honorable Court herein, and 
makes a part of this, his return. 

3. And that the judgment of said Justice and Court so rend- 
ered on said 12th day of June, 1889, still stands and obtains as 
a valid and decisive adjudication of the claim of said petitioner 
to said salary, in respect to the time between said 1st day of 
October, 1888, and the 28th day of February, 1889, inclusive. 

4. And said respondent not waiving the above defense, or 
any part thereof, but insisting thereon as a valid defense to the 
alternative writ issued herein, especially as refers to so much of 
petitioner's claim herein as was adjudicated as aforesaid, doth 
further represent unto this Honorable Court, as follows : 

5. That he denies that said G. W. Macfarlane was appointed 
as His Majesty's Chamberlain on the 1st day of October, 1888, 
or at any other time, and denies that said George W. Macfarlane 



22 • DECEMBER, 1889. 

is or ever has been appointed as such Chamberlain, but states 
the truth to be as follows : 

6. That on the said Ist day of October, 1888, said George 
W. Macfarlane was absent from this kingdom, and remained 
continuously absent thereafter for a long period, to wit, about 
five months, when he returned to this kingdom, until, to wit, 
the month of October, 1889. 

7. And respondent further represents that His Majesty's 
Chamberlain is a public ofl&cer of the Hawaiian (Jovernment 
assigned for the purposes of said government to personal 
attendance .upon His Majesty and the Royal Household, and as 
a medium of communication between His Majesty and His 
Majesty's ministers, and charged with the supervision of the 
ceremonies pertaining to the presentation to His Majesty of the 
officers of foreign governments and of foreign dignitaries, and is 
in other respects closely attendant upon the person of His 
Majesty, and necessarily cognizant of many of the private and 
public concerns of the Sovereign, and of the affairs of the 
Government. 

8. That the character of the Government here existing, and 
of the Constitution under which we live, contemplate and 
demand that His Majesty's Chamberlain should be personally 
and politically acceptable to the Cabinet of the day, and in, 
order to the validity of the appointment of any person as such 
Chamberlain, such appointment should have the sanction and 
consent of the Cabinet. That it is not contemplated by the 
Constitution, or by the Act of the Legislature, whereby the 
salary of such Chamberlain is appropriated, that such salary 
should be drawn by any person claiming to hold such office if 
such claim be opposed to the wishes and policy of the respon- 
sible ministers of His Majesty for the time being, nor without 
the consent of the Cabinet. 

9. And your respondent further represents that said G. W. 
Macfarlane has not been appointed to said office of His Majesty's 
Chamberlain, and does not hold and has not held such office, by 
or with the consent or sanction of His Majesty's Ministers, or 
any of such Ministers. And that said petitioner's pretended 



MACFARLANE t?a. DAMON. 23 

appointment to said office, if made or attempted to be made at 
all, was so attempted to be made by His Majesty personally, 
without the consent or sanction of His Ministers, or of any of such 
Ministers, and without any legal authority in His Majesty, in 
the absence of such consent or sanction, to make such appoint- 
ment, or to confer upon the said petitioner, by virtue of such 
pretended appointment, any right to collect or receive the said 
salary, or any part thereof. 

10. And this respondent further represents that during the 
year next following said petitioner's pretended appointment to 
said office, on October Ist, 1888, he, the said petitioner, did not 
perform the duties of His Majesty's Chamberlain, or any of 
them, but that the said duties were performed by another, 
to-wit, James W. Robertson, the said petitioner ha\dng been 
during almost all of said year, as hereinbefore described, absent 
from this Kingdom. 

11. Wherefore said respondent respectfully submits that the 
foregoing constitutes sufficient cause for his not having paid to 
said G. W. Macfarlane the salary of and pertaining to the said 
office of His Majesty's Chamberlain, and prays that said writ so 
issued and directed to this respondent herein, as aforesaid, be 
dismissed. 

The application for the writ was made to the Chief Justice, 
who made no order, but after argument reserved the matter for. 
the consideration of this Court upon argument before it. 

By the Court. 

In determining the controversy raised by these proceedings, 
the controlling question of principle is whether the King's 
Chamberlain is such an officer as is required to be commissioned 
to his office in order that his acts therein may be legalized, and 
whether his appointment requires to be approved by the 
Cabinet. 

We adopt here the language of our lamented associate, Preston, 
in the case referred to in the respondent's return, of this peti- 
tioner V8. Wm. L. Green, the preceding Minister of Finance. 
He says : 



24 DECEMBER, 1889. 

" It will be necessary in the first place to consider what is 
the status of the Chamberlain. It is not a statutory office, 
the duties appertaining to which are defined by law. The 
statutes creating the office and defining the duties were rej^ealed 
by the Civil Code in 1859, and until the session of the Leginla- 
ture of 1864-5 no provision was made for the payment of such 
an officer, when an appropriation of {|»5,000 was made for the 
' salary of His Majesty's Chamberlain and Secretary,' and the 
appropriation for * Chamberlain and Secretary ' continued until 
1888, when it appears as ^ Chamberlain ' only. 

" The duties of the Chamberlain have been personal to His 
Majesty, and it is now for the first time, so far as I am aware, 
and I have had many opportunities from my connection with 
former governments of knowing, that the right of the govern- 
ment to approve of the appointment has ever been asserted, and 
it is not suggested by the respondent that it has been. 

" The Attorney-General in his brief refers to the practice in 
Great Britain where such an official would retire with the 
Ministry, and refers especially to the question which arose 
early in Her present Majesty's reign as to the appointment of 
the Bedchamber Women, and claims that by analogy the same 
rule should apply here. 

" I do not think there is such analogy ; the rules regulating the 
holding of offices in Great Britain and the responsibility of 
Ministers have been the growth of centuries, and are not and 
cannot be applicable here according to our constitution. In fact, 
if the practice obtaining in Great Britain were applicable and in 
force here, the Court would not have to consider this case, 
because if His Majesty would not act upon the advice of his 
responsible advisers in matters in. which they consider them- 
selves responsible, they would have to give way or resign. 

" I am of opinion that the office of Chamberlain is personal to 
His Majesty, and that there is no legal necessity for the ap- 
pointment to be by commission or in writing, and that it does 
not require the approval of the Ministers. 

'* Should a person be appointed to the office whom the Minis- 
ters consider objectionable, they can exercise some control in 



MACFARLANE vs. DAMON. 25 

the Legislature by declining to ask for a vote for the salary." 
(6 Hawn., 715.) 

We may regard it as a crucial test of the requirement of a 
commission, to consider whether the acts of the officer are legal 
or illegal, valid or invalid, as he may be commissioned or not. 
The statute of 1850, prescribing in amendment certain duties to 
the Chamberlain, was repealed in 1859, likewise the statute of 
1848 providing for his appointment. By this earlier statute it 
was made obligatory on His Majesty, with the approbation of the 
Privy Council, to appoint a Chamberlain of the Royal House- 
hold, who shall be solely entitled lo draw upon the Minister of 
Finance for all the expenses of the Royal Household, and it 
shall not be lawful for any person in this Kingdom to debit His 
Majesty or any other person on his behalf, except the Chamber- 
lain, such debts not to be recoverable at law. No check or draft 
of the King on the treasury could be paid unless it was counter- 
signed by the Chamberlain, and the Chamberlain might be held 
personally liable to creditors for expenditures in excess of the 
stated allowance. 

The legal inference from the repeal of the statutes which re- 
quired a Chamberlain to be appointed with the approval of the 
Privy Council, and which gave him powers and duties, there 
being no other statutes enacted concerning him, is that the 
Chamberlain is not now an officer of the law. His office not being 
established by law, and no duties being prescribed by law, he 
requires no commission, and he requires no oath of office. 
Without an appointment by commission of the King, what 
would there be for the Cabinet to approve of ? Without legal 
duties, what is there done by him which requires a legal ap- 
pointment ? What acts of his are made valid by such appoint- 
ment, and invalid without it ? The clause in the appropriation 
bill is merely a provision for the payment of a Chamberlain. 
The item is placed in the civil list, one of the five which con- 
stitute that department of the appropriation bill. We see no 
reason why this should be placed more under the direction of 
the Cabinet than any of the others. There are allowances to 
three Royal personages, the fifth is for His Majesty's household 



26 DECEMBER, 1889. 

expenses. It is not obligatory on the King to appoint a Cham- 
berlain. He might appoint one without this extra provision for 
salary, paying him out of the grant which he receives for the 
state and expenses of the occupant of the throne. 

There is, as we see and are informed, no warrant in the re- 
pealed statutes or. in the precedents and practice following there- 
after for the statement in the seventh article of the respondent's 
return, that the Chamberlain is a public officer of the Hawaiian 
Government, assigned * * * as a medium of commu- 
nication between His Majesty and His Majesty's Ministers, 
* * * or that he is necessarily cognizant of many of 
the * * * public concerns of the Sovereign, and of the 
affairs of the Government. The Chamberlain attends no meet- 
ings of the King and Cabinet, and has no official knowledge of 
public business. If he is a medium of communication between 
the King and the Cabinet, it is as a servant. If he has influence 
with the King which may be adverse to the policy of the Cabinet, 
it is only as a friend, and the influence of the King's friends 
cannot be controlled. 

The opinion of the Justices rendered to the Cabinet August 3, 
1889, in reply to their request for a definition of the King's 
powers under the Constitution, concludes that "acts of the King 
are done upon the responsibility of His Cabinet, unless it ap- 
pears from express words or by the very nature of the case that 
the act is of a personal character." (7 Hawn., 784.) Holding, 
as we do, that the office of Chamberlain is of a non-political and 
non-legal character, and the service personal to His Majesty, 
his designation of the person who shall perform the service is an 
act of the latter description, and the Cabinet is not responsible 
for it. 

The defense of res judicata^ set up in the second and third 
articles of the return, does not stand on the principle which sup- 
ports such pleas. The plaintiff herein has not had an adjudica- 
tion against him which he has allowed to become final. He had 
appealed from the decision of the Justice hearing his application 
for a mandamus against the then Minister of Finance. Before the 
case could be heard by the Appellate Court, the Minister, Mr. 



MACFARLANE vs. DAMON. 27 

Green, had resigned. It would then have been futile to proceed 
to obtain a mandamus directing Wm. L. Green to pay money 
from the Government treasury. It was impossible to substitute 
Samuel M. Damon in the appellate proceedings inasmuch as he 
had not made the refusal on which the mandamus was asked. 
'The plaintiff's proceedings in the iSirst instance, therefore? 
terminated without prejudice, and it would be a denial of justice 
not to allow him to commence again after a demand on the 
new incumbent, which was refused. 

See {7. S. vs. Boutwell, 17 Wallace, 604. 

The third ground upon which the payment of the salary is 
refused, as set forth in the sixth and tenth articles of the return, 
is that the petitioner has not in fact performed the duties of the 
office. In this case the petitioner makes replication by affida- 
vit that while absent from the Kingdom he was performing du- 
ties for His Majesty, having gone abroad by his command, and 
that provision was made for the performance of the Chamber- 
lain's duties near his person by a Vice-Chamberlain whom he 
pays out of his salary. This is a duplicate or collateral defense, 
not consistent with the ground that the relator was not 
the Chamberlain for the want of a sufficient appoint- 
ment. In considering whether he performed Chamber- 
lain's duties, we treat it on the ground that he was duly ap- 
pointed. Can the Minister of Finance inquire into the perfor- 
mance of the duty of an office by the incumbent thereof and 
refuse to pay the salary if he judges there has been no perfor- 
mance. The first answer in this particular case of a personal 
appointment held at the pleasure of the appointing power 
would be, that if it is satisfactory to him, the Minister of Fi- 
nance may not examine into the performance of the service. 
And this rule may be carried further. Could it be claimed that 
the Minister can pass upon the right to salary of any clerk or 
other appointee of any of the departments? But the rule ex- 
tends still further to public officers other than tho&jp holding at 
the pleasure of appointing powers, that is to say, to superior 
officers holding office by commission. It is clearly established 
that the compensation of an office does not depend on time or 



28 DECEMBER, 1889. 

labor expended in discharging the duties of it, but upon the 
title to it. The salary follows the title. Any other rule than 
this would admit an intolerable scrutiny by the Minister of 
Finance into the measure of the services of every officer in the 
Government, and the principle legitimately carried out would 
empower the Minister to make partial payment in proportion 
to the amount of the service as he should determine it. Not in 
this way can faithful performance of duty be insured or the 
omission of it be punished. 

People V8, Tieman, 8 Abb., 359. Mayjield vs, Moore, 58 III., 
428. Com. "vs. Bowman, 25 Penn., 23. O^Leary vs. Board of 
Education, 93 N. Y., 1. Dorsey vb, Smyth, 28 Cal., 21. 

The writ is ordered to be made absolute. 

Paul Neumann and Charles L, Carter, for the relator. 
C. W. Ashford, Attorney-General, and A. P. Peterson, deputy, 
for the respondent. 

Additional Views of Chief Justice Judd. 

In addition to the above opinion of the Court I wish to add 
the following: 

Article 78 of the Constitution, that prescribes that "whenever 
by the Constitution any act is to be done or performed by the 
King or the Sovereign, it shall, unless otherwise expressed, 
mean that such act shall be done and performed by the Sover- 
eign by and with the advice and consent of the Cabinet," has 
no application to the question whether the appointment of 
Chamberlain to His Majesty requires to its validity the advice 
and consent of the Cabinet, for the Constitution makes no men- 
tion of the office of Chamberlain. So, also, the statute of 1887, 
which places a similar construction upon "any act or thing 
commanded or permitted to be done by the King by virtue of 
any statute of this Kingdom," has no application, for the office 
of Chamberlain is not created by statute. In the absence of 
any constitutional requirement or statute law, what ought to 
control in the decision of this matter? The obvious answer is, 
the nature of the office, its duties and responsibilities, as estab- 
lished by Hawaiian precedents. These all go to show that the 



MACFARLANE vs. DAMON. 29 

Chamberlain has been the business agent of the King. He 
draws the King's allowance from the State Treasury, disburses 
it at His Majesty's pleasure, oflBciates at public receptions and 
Palace festivities and receives the guests, regulates public cere- 
monies, attends His Majesty on public occasions, and does simi- 
lar duties, all, however, of the nature of personal service to the 
King. Until the last appropriation bill the item for salary of 
Chamberlain has been for "His Majesty's Chamberlain and 
Private Secretary," and with but one exception the two oflBces 
have been held by the same person. And although the title, 
"Private Secretary," is now dropped from the appropriation for 
Chamberlain, there is no doubt that the Chamberlain will also 
discharge the duties of Private Secretary to the King. 

The Chamberlain has no political function whatever to per- 
form. He is, unlike all other officials, in no department or bu- 
reau of the Government. The course has been heretofore to 
appoint him by virtue of a commission from the King. It is 
not clear whether this commission has been usually counter- 
signed by a Minister, but it is certain that the King's appoint- 
ment of a Chamberlain has, uniformly, with the exception only 
of the case now before us, been accepted by the Cabinet without 
question. Much might be said on both sides of the question 
whether the appointment of the Chamberlain should be the 
personal act of His Majesty, or be a "Cabinet appointment. But 
the question as to which method would be the wisest is one of 
polic}^ a matter of legislative action, and does not come into 
the present discussion. What we are to consider is the present 
status of the appointment as found from the precedents of the 
past history of the country. It has always been a personal ap- 
pointment by the King. If the law-making body should deem 
it proper to make it a Cabinet appointment, a statute would 
accomplish this. 

Unless there be some statute prescribing the method of ap- 
pointment, the officers of the Government are appointed by the 
head of the department whom the official is to serve. An illus- 
tration of this is found in the appointment of a short-hand re- 
porter to the Supreme Court, for whose salary an appropriation 



30 DECEMBER, 1889. 

was made. There is no statute creating the office or designa- 
ting by whom the appointment should be made. The natural 
inference would be that the Supreme Court, whom the steno- 
grapher is to serve, should select and appoint this official. The 
analogy holds good as regards the appointment of the Cham- 
berlain. He is to serve the King personally — more so than in 
the sense that all public officers serve him — the King therefore 
appoints him. 

Dissenting Opinion, by Dole, J. 

The plaintiff alleges in his petition that on the first day of 
October, A. D. 1888, His Majesty Kalakaua *'over his name and 
under the great seal of the Kingdom appointed and commis- 
sioned your petitioner one of the officers of his household, to 
wit, his Chamberlain, as will more fully and particularly ap- 
pear by a copy of the said commission issued to him, hereto 
annexed, marked Exhibit A., and hereby expressly made a 
part h^eof, and that your petitioner has held and does now 
hold the said office of His Majesty's Chamberlain, subject and 
at all times obedient to the commands of His Majesty the 
King," and that he has demanded of the respondent the pay- 
ment to him of the salary appropriated by the Legislature of 
1888 for His Majesty's Chamberlain, but that the respondent 
undutifully and unlawfully refused and still refuses to pay the 
same or any part thereof, '' alleging as his reason that the Cabi- 
net has not sanctioned the appointment of your petitioner to 
the office of Chamberlain as aforesaid, and for that said ap- 
pointment does not meet with the approval of the Cabinet, all 
of which doth more fully appear by the copies of the correspond- 
ence which has passed between the said Samuel M. Damon, 
Minister of Finance, and your petitioner, hereunto annexed, 
marked Exhibit B, and made a part hereof." 

The plaintiff claims to be entitled to three thousand dollars 
for twelve months' service as such Chamberlain, and prays for 
a writ of mandamus to compel the respondent to make pay- 
ment thereof, or show cause for refusing. 

Such an alternative writ was issued, returnable on the 13th 



MACFARLANE vs. DAMON. 31 

day of November, A. D. 1889, before Judd, C. J., in chambers. 

The respondent in his answer gives three reasons why he 
cannot be legally called upon to pay the said salary, to wit: 

First: That the case of Macfarlane vs. Green, 6 Hawn., 711, 
was a similar proceeding with the present, and for a portion of 
the identical sum of money claimed herein; and that in those 
proceedings it was adjudged that the petitioner had not shown 
himself entitled to the salary therein claimed, and that such 
judgment still stands as a decisive adjudication of the claim in 
the said cause. 

Second: That the alleged appointment of the petitioner is 
invalid because it has not received the approval of His Majesty's 
Ministers or any of them. 

Third: That during the year next following such alleged 
appointment of the petitioner as Chamberlain he did not per- 
form the duties of Chamberlain, being absent from the King- 
dom during the greater part of such year, the said duties being 
performed by another. 

The correspondence exhibited is occupied mainly with a dis- 
cussion of the second and third grounds above set forth. 

A hearing was had on the 21st day of November, A. D. 1889, 
before the Chief Justice, who reserved the questions raised for 
the consideration of the full Court. 

In regard to the first ground of defense, t.e., that the judg- 
ment entered in the case of Oeo. W. Macfarlane vs. WiUiam L. 
Green, Minister of Finance, has finally adjudicated a portion of 
the present claim : it is clear to me that the position is unten- 
able. An appeal was made from that decision to the Full Court, 
which appeal was abated by the resignation of William L. Green 
from the office of the Minister of Finance. The effect of the 
termination of the case at that stage, i.e., pending appeal, by 
abatement, could not be different from the effect of a similar 
disposition of the case while it was pending in Chambers, which 
would simply be a cessation of the proceedings without prej- 
udice. 

The second cause shown by the respondent why he cannot be 
legally called upon to pay the claim, {.«., that the alleged ap- 



32 DECEMBER, 1889. 

pointment is invalid without the approval of the Ministry, or 
any of them, which has not been given, necessitates a consider- 
ation of the principles of our Grovernment. 

From the death of Kamehameha I. until the promulgation of 
the present Constitution, the executive authority of the Govern- 
ment was shared between the Sovereign and Kuhina Nui, or the 
Ministry. The office of Kuhina Nui became obsolete in 1864 
with the abrogation of the Constitution of 1852. The executive 
power of the Sovereign was somewhat increased by the Constitu- 
tion granted by Kamehameha V. in 1864, for although it en- 
acted that ** no act of the King shall have any effect unless it be 
countersigned by a Minister," it also provided in the same article 
that the Ministers " shall be appointed and commissioned by the 
King, and hold office during His Majesty's pleasure, subject to 
impeachment," while there is no recognition in the previous 
Constitutions of any authority in the Sovereign to dismiss the 
Kuhina Nui. It also enacted that "to the King belongs the 
executive power." The enactment of ministerial responsibility 
in the Constitution of 1864 was never very definitely understood 
or interpreted, and the reason of this is in its inconsistency with 
the other provisions above quoted, that the Ministers shall hold 
office during the King's pleasure, and " to th6 King belongs the 
executive power." And yet there was in the administration of 
affairs during the reigns of Kamehameha V. and Lunalilo a 
general recognition of ministerial responsibility to the country, 
and of ministerial executive authority, and neither of these 
Sovereigns interpreted the constitutional provision that the 
Ministers should " hold office during His Majesty's pleasure," to 
mean that they might dismiss the Cabinet for private reasons. 

In the present reign the principle of ministerial responsibility, 
thus feebly sanctioned by the fundamental law, has been 
gradually and steadily undermined until it finally ceased to 
exist under the encroachments of the Crown, and the whole ex- 
ecutive authority became centered in the person of an irrespon- 
sible Sovereign. The revolution of 1887 was a public protest 
against this political status, and the Constitution of that year, 
which is now our fundamental law, was intended to remove 



MACFARLANE vs. DAMON, 33 

the evil and to make its return impossible. This instrument 
marks a new departure in the administration of our Govern- 
ment ; by its preamble it states the reason of it to be that the 
old Constitution' contained ** many provisions subversive of civil 
rights and incompatible with enlightened constitutional gov- 
ernment," and that its promulgation was necessary to the main- 
tenance of the Grovernment. It enacts that the Ministers shall 
be removed by the King only upon a vote of want of confidence 
passed by the Legislature, or upon conviction of felony ; that the 
executive power is in the King and the Cabinet ; that every 
sovereign act required by the Constitution shall be performed 
only with the advice and consent of the Cabinet, except where 
the provision for such act dispenses therewith, and that all ex- 
isting laws and parts of laws repugnant to its provisions are 
null and void. It ushered in a new political dispensation — a 
dispensation clearly and emphatically of public administration 
of affairs by responsible officers only. This principle of Govern- 
ment was ratified and extended — if that were possible — by the 
Legislature in a law passed on the eigth day of December, A.D. 
1887, and approved by the King, which declares : " Whereas, 
it is consistent with the spirit of the Constitutional Government 
of the Hawaiian Kingdom that the Sovereign shall act in a!l 
matters of State only by the advice and with the consent of his 
constitutional advisers ; therefore, be it enacted, etc. : Wherever 
by virtue of any statute now in force in this Kingdom, or which 
shall hereafter be in force therein, any act or thing is com- 
manded or permitted to be done or performed by the King or 
the Sovereign, it shall, unless otherwise expressed, mean that 
such act or thing shall be done and performed by the Sovereign 
by and with the advice and consent of the Cabinet." 

Even with these clear and definite enactments of this prin- 
ciple of government, His Majesty has failed to realize and 
understand its meaning and to accept its full application to 
the administration of affairs. This attitude upon his part at 
at length culminated in an open breach of harmonious relations 
between the King and the Cabinet on the third day of August, 

A.D. 1889, when the Cabinet requested the opinion of the Jus- 
8 



34 DECEMBER, 1889. 

tices of the Supreme Court upon the matter at issue under the 
following submission : 

"Honolulu, H. I., Aug. 3, 1889. 

" To the Hon, A. Francis Judd, Chief Justice Supreme Court, 

" Sir : The Cabinet desire to submit for your consideration 
the following statement of facts, and respectfully request the 
opinion of the Supreme Court upon the question hereinbelow 
stated : 

" Statement of Facts. 

« 

** His Majesty the King claims the right to exercise his per- 
sonal discretion in and concerning the performance of oificial 
executive duties of the Sovereign, such as making appointments 
requiring the Royal signature; appointment and removal of 
diplomatic and consular officers accredited by the Hawaiian 
Government abroad ; the acknowledgment of foreign diplomatic 
and consular representatives from abroad to the Hawaiian King- 
dom ; the authority over and control of the military forces and 
munitions of war belonging to the Hawaiian Government, etc. 

" His assertion of and action in pursuance with this claim has 
now come to such a point that the orderly progress of the busi- 
ness of the Government is seriously interfered with and the 
preservation of the public peace menaced. 

" Under these circumstances the Cabinet this day formulated 
and presented to His Majesty the following statement of prin- 
ciples, viz. : 

" ' Before going further, the Cabinet desire a through under- 
standing with Your Majesty upon the following point, viz. : 
The Government in all its departments must be conducted by 
the Cabinet, who will be solely and absolutely responsible for 
such conduct. Your Majesty shall, in future, sign all docu- 
ments and do all acts which under the laws or the Constitution 
require the signature or act of the Sovereign, when advised so to 
do by the Cabinet, the Cabinet being solely and absolutely 
responsible for any signature of any document or act so done or 
performed by their advice.' 



MACFARLANE vs. DAMON. 35 

"The Cabinet advised His Majesty that such statement of 
principles is in accordance with the Constitution, and that it was 
his dutv to assent thereto. 

'*In reply to such advice by the Cabinet, His Majesty replied 
that he considered the request to consent to such statement of 
principles as uncalled for and insulting, and declined to assent 
thereto. 

" The Cabinet therefore respectfully request the opinion of the 
Supreme Court upon the following question, viz. : 

" Is the authority and responsibility of the Cabinet, as set 
forth in the above statement of principles, in accordance with 
and in pursuance of the Constitution or not ?" 

The Justices of the Supreme Court, in their reply, unanimously 
and without qualification sustained the principles of responsible 
government in the following language : " There can be no dual 
government. There can be no authority without responsibility. 
The King is without responsibility. The Constitution confers 
the responsibility of government upon the Cabinet ; they there- 
fore have the authority. With this in view, we are unanimously 
of opinion that the principles formulated b}'^ you and presented 
to His Majesty, above set forth, are in accordance with and in 
pursuance of the Constitution." (7 Hawn., 784.) 

This somewhat sweeping application of the principle under 
consideration allows no exception which is not allowed by the 
Constitution and laws. It tacitly repudiates the method of ap- 
plication of the 78th Article of the Constitution, which was 
adopted by the Court in the case of Everett vs. Baker (7 Hawn., 
229), popularly known as the Veto Case. The Court in that 
case say: "Since the 78th Article (of the Constitution) con- 
tains the words 'unless otherwise expressed'; therefore any act 
of the King which does not, by force of the article which defines 
the act, require the consent of the Cabinet, is excepted from the 
operation of the general rule laid down in Article 78." If it is 
conceded that the reasoning of this part of that decision is un- 
tenable, an important step is gained toward a clear and consist- 
ent interpretation and application of the law upon this subject, 
and the meaning of the 78th Article of the Constitution may be 



36 DECEMBER, 1889. - 

confidently stated to be that there is no exception to the rule 
that every Sovereign act must be " by and with the advice and 
consent of the Cabinet," unless the law defining such act shall 
make it an exception. 

This brings us down to the consideration of the question em- 
braced in the second ground of defense to this application for a 
writ of mandamus. Is the appointment of the Chamberlain an 
act of the Sovereign which is required by our Constitution and 
laws, as interpreted by the Justices of the Supreme Court in 
their opinion of August 3rd, 1889, to be done by and with the 
consent of the Cabinet ? To answer this question it is necessary 
that the nature of the office of Chamberlain should be clearly 
understood. Is it a public or private office? Does the Cham- 
berlain in our government hold the same relation to His Majesty 
and to the public as does the King's coachman or his cook, as 
was urged in the argument in this case? 

I think there can be no question that the position is a public 
one and that the appointment is an official act, or, to bring it 
within the words of the opinion of the Supreme Court of Aug- 
ust 3rd, 1889, is an executive act, for the following reasons: 
The office of Chamberlain has been a feature of this government 
almost from the time it became a constitutional monarchy. 
From 1846 to 1850 the duties and powers of the Chamberlain 
were prescribed by law. Since 1850 to the present time the of- 
fice has been continued, and from the year 1864 has been recog- 
nized by every Legislature by an appropriation for the salary 
of the incumbent. The office has during this period been 
closely patterned after the similar office of Lord Chamberlain 
of England. The description of a "royal chamberlain" in the 
Encyclopsedia Britannica correctly defines the office in both 
countries, as follows: *'A royal chamberlain is an officer whose 
function is in general to attend on the person of the sovereign 
and regulate the etiquette of the Palace." The Lord Chamber- 
lain in England has some duties which are not imposed upon 
the Chamberlain of the Hawaiian Court, such as attending to 
the histrionic matters of the royal theatres; but, as the head of 
the royal household, upon whom devolves the regulation of 



MACPARLANE V8, DAMON. 37 

court etiquette, the issuing of royal invitations to receptions 
and parties, and the arranging of presentations at court, his 
functions correspond minutely with those of the ofiGice in this 
country. With this showing it cannot be denied that the office 
is a public one, that it is authorized by law, that the character 
of its incumbent and the manner of his performance of the duties 
of the office concern the relations of the government at home 
and abroad, and may affect the international reputation and 
standing of the country. The Chamberlain is not the servant 
of the King, or his private secretary or his business agent ; he is 
distinctly his official attendant, the person through whom he 
meets the public in his capacity as Sovereign. 

If this is so, can it be contended that no authority or respon- 
sibility is involved in the appointment of so important an offi- 
cer? And if there is authority there is responsibility. "There 
can be no authority without responsibility. The King is with- 
out responsibility. The Constitution confers the responsibility 
of government upon the Cabinet; they therefore have the au- 
thority." {Opinion of the Supreme Courts August 3d, 1889.) 

This national importance of the office of Chamberlain as 
above set forth brings the appointment within the law above 
quoted, passed by the Legislature on the 8th day of December, 
A. D. 1887, which provides that " whereas it is consistent with 
the spirit of the constitutional government of the Hawaiian 
Kingdom that the Sovereign shall act in matters of State only 
by the advice and with the consent of his constitutional advis- 
ers," the King shall perform those acts which he is authorized 
or permitted to do by virtue of the laws, "by and with the ad- 
vice and consent of the Cabinet," unless the law provides other- 
wise. It can hardly be argued that the appointment of the 
Chamberlain is not a "matter of state." 

An executive act is an act that carries out or executes the 
law. The law in providing for the salary of the Chamberlain, a 
public officer, provides by necessary implication for his appoint- 
ment. It thus becomes strictly an executive act, like the ap- 
pointment to any other statutory office. 

The manner of appointment to the office of Chamberlain, pre- 



38 DECEMBER, 1889. 

vious to the revolution of 1887, has no bearing upon this issue, 
and no force by way of precedent, for the status of the Sover- 
eign was radically changed by that revolution, as is shown 
above, and modified upon this very point of his authority in 
making appointments to office, which authority — or what there 
was of it — was entirely swept away, except as to the appoint- 
ment of the Cabinet. As a matter of fact, however, for a period 
of fourteen years or more the Chamberlain has been appointed 
by royal commission under the great seal of the Kingdom, which 
would prima facie characterize such appointment as an execu- 
tive act. It has also been the practice, to some extent, under 
the old regime to have such commissions countersigned by a 
Minister. 

I think it may be accepted as an irresistible conclusion arising 
from the circumstances and enactments of the late revolution- 
ary movement, that the King has no powers except those 
granted him by the Constitution. The executive power is 
there placed in the hands of the King and the Cabinet, and 
there is no remainder or surplus of executive power 
that is given to him to use independently, unless the appoint- 
ment of the Cabinet might be so regarded. 

These conclusions of law are strongly supported by the con- 
clusions of public policy. For instance, if the position should 
be filled by a person who paid no attention to his official du- 
ties, or absented himself entirely from the country, or who at- 
tended to his duties in an incapable or scandalous manner, 
there would be no remedy unless the responsible Cabinet had 
the control of the office, except to wait for the succeeding session 
of the Legislature, which might be more than a year away. 

It is a signficant fact with a direct bearing upon this ques- 
tion, that in England the Lord Chamberlain is appointed by 
the Cabinet and changes with the administration. This is be- 
cause it has been found by experience that it is better for the 
harmonious administration of affairs that an officer holding a 
position so intimate, and so full of opportunity of acquiring in- 
fluence with the Crowji, should be in political accord with the 
ministry. If this reason for ministerial control of the office is 



MACFARLANE vs. DAMON. 39 

good in England, it is a matter for serioufl consideration 
whether it is not also good here. But this is an argument from 
policy which I do not rely upon, but call attention to the har- 
mony that exists, as it appears to me, between the conclusions 
of law and the policy arising from this question. 

As to the third ground of defense, i, e., that the petitioner 
has not performed the duties of the office, and has been absent 
from the country during a large part of the time for which he 
claims to be paid, I feel, as I have suggested above, that the 
best remedy for such a state of things is to dismiss the official 
so failing to perform. But it seems to me that a person hold- 
ing an office is entitled to the pay of the office in full, so long as 
he remains in it. To admit that the Minister of Finance has 
the discretion to call an official to account for lost time or in- 
competent performance, and investigate his official record with 
a view to pay him only for work actually performed, and to 
discount his salary accordingly, would place upon his shoul- 
ders, in addition to his other responsibilities, a duty so oner- 
ous and uncertain and easily capable of abuse as to render its 
performance well-nigh impracticable, and its attempt inconsis- 
tent with public policy. The obvious remedy for official dere- 
liction is dismissal, which is one of the arguments before stated 
for the necessity of a responsible appointing power. A de- 
crease by the executive of the salary of an official, fixeft by law, 
would be in the nature of an interference with the legislation, 
the Legislature being the sole judge of the value to the govern- 
ment of the work pertaining to any office. 

I feel, however, that when a person who is absent from the 
country is appointed to the office of Chamberlain, the duties of 
which require personal attendance upon the Sovereign and the 
presence of the incumbent at the Palace or the royal court, it 
might well be considered that he should not be* regarded as 
having accepted the appointment and qualified himself as 
Chamberlain until he should have put in an appearance at the 
place where the duties were to be performed, and consequently 
that his pay should not begin to run until he had shown his 
bona fide acceptance of the position by his presence at the post 



40 DECEMBER, 1889. 

of duty. My mind is, however, not fully made up upon this 
point. 

Upon the second ground, therefore, of the defense, I am con- 
vinced that the petitioner not having shown that his alleged 
appointment has been made with the approval of the Cabinet, 
he has failed to prove that he has been legally appointed to the 
office of Chamberlain; he is therefore not entitled to the salary 
claimed, and his application for a peremptory writ of man- 
damus should be refused. 



MARY C. BECKLEY va. GEORGE LUCAS, Executor of 

Margaret Keegan, et als. 

Appeal from Dole, J. 

Hearing, December 24, 1889. Decision, January 31, 1890. 

JuDD, C.J., McCuLLY, Btckerton, Dole, JJ. Preston, .J., 
having been of Counsel, did not sit. 

Articles of adoption were executed by A, the father, B., the adoptiofr 
mother, and C, the adopted child, containing a separate covenant be- 
tween B., who promijsed to convey or devise certain real estate to C, 
and O^ who promised to obey the lawful commands of B. 

Demorrer, that the consideration in the second covenant was invalid be- 
cause the promise to obey was only the promise to perform a lawful 
duty, was overruled on the grodbd that this was a concurrent part of 
the contract, C. not then having been adopted, and furthermore that 
t]he promise of B. to G. is supported by the covenant of A to B. for 
the adopting. 

Opinion op the Court, by McCully, J. 

The plaintiffs bring a bill in equity for the specific perform- 
ance by the defendant's decedent of a covenant contained in a 
certain instrument to the following effect : 

There are three parties: George Risely, of the first part, 
Magaret Keegan, widow, of the second part, and Mary Risely, 
minor daughter of the said George Risely, of the third part. 



BECKLEY vs. LUCAS. 41 

There is first a covenant between the party of the first part and 
the party of the second part, wherein the said George Risely sur- 
renders to Mrs. Keegan his parental control and rights over his 
child, Mary, Mrs. Keegan reciprocally covenanting to adopt, 
maintain and care for her as if she were her own natural daugh- 
ter. There is next a separate covenant between the second and 
third parties. The second party covenants to make a valid con- 
veyance to the third party of a described piece of real estate, or 
to devise it to her by her last will and testament, and the party 
of the third part reciprocally covenants with the second party 
henceforth to obey her commands and to perform the duty of a 
child as towards a natural mother. 

Mrs. Keegan having failed to make a conveyance of the prop- 
erty, or to devise it to Mary Risely in her will, the bill is 
brought against the executor and trustee of her will to compel 
specific performance. 

The demurrer is " on the ground that it does not appear by 
said bill that there was or is any valuable consideration for the 
conveyance here sought, nor any valid covenant for such convey- 
ance which could have been enforced against the said Margaret 
Keegan in her life time, nor against this defendant since her 
decease." 

It may be said at once that there is no covenant for such con- 
veyance which could have been enforced against the decedent in 
her life time, unless she had otherwise conveyed away these 
premises, or by another marriage had given a husband some 
rights therein, or in some other way was putting it out of her 
power to make the conveyance or devise she had contracted to 
make, for she had the option of only giving the agreed benefit 
after her death. 

It is claimed by the demurrer that the expressed consider- 
ation for the conveyance or devise to be made, the promise of 
the adopted child to obey, is naked and invalid as being a pro- 
mise to do what she was already bound by law to do. 

By the statutes of this Kingdom, found at page 210, Compiled 
Laws, a child adopted, as by law allowed, is bound to obey the 
lawful and moral commands of the parents by adoption. 



42 DECEMBER, 1889. 

Adoption is, however, a relation artificially created, and haa 
in it some points not perfectly corresponding with the natural 
relation. We observe that in the beginning the creation of the 
relation is purely a voluntary one on the part of the parents 
who give and the parents who take and adopt the child. 

Special terms may be made in the contract of adoption, and 
frequently are, particularly with regard to the pecuniary inter- 
est of the child. The child having come to years .of understand- 
ing may be allowed to have some voice in the proceeding. It 
was so in the case before us when the subject of adoption was 
made a separate third party to the contract. She was treated as 
a person t)f sufficient understanding to join in a contract by the 
Justice of the Supreme Court by whom the adoption was ratified. 

The three parties, thus coming together, form an agreement, 
the first with the second, and the second with the third. The 
covenants are more than contemporary ; they are concurrent. The 
promise of obedience and duty made by Mary Risely towards 
Mrs. Keegan is not the promise of a child adopted, upon whom 
a duty has been cast, promising to do that duty for a consider- 
ation. The covenant of Mrs. Keegan to convey or devise a valu- 
able piece of real estate to the child cannot be separated from 
the motives of the transaction which was consummated in this 
deed, whereby the father surrendered his daughter, and the 
daughter promised filial obedience to a stranger. 

There is no question but that there is a form of consideration 
expressed in the second covenant. We hold that it is not an un- 
real consideration, it being made as a part of the adoption, a con- 
dition of it, and we hold that it is also supported by the first 
covenant, it being a part of the same transaction. 

The demurrer is overruled. 

/. M. Monsarrat, for plaintiff. 

C L. Carter and F. M, Hatch, for defendants. 



OLSSON v8. DA VIES. 43 



C. P. OLSSON vs. THEO. H. DA VIES & CO. 

Submission without Action. 
Hearing, January 21, 1890. Decision, January 30, 1890. 

JUDD, C.J., McCuLLY, BiCKERTON, DoLE, JJ. 

A cargo of lumber was shipped from Tacoma, Washington, bound for 
Montevideo. The cargo was insured in defendants' company. The 
vessel put into Honolulu in distress, and was condemned and the 
voyage was broken up and a vessel for Montevideo could not be ob- 
tained here. The Master notified the owners of the cargo of the facts, 
who referred the matter to the underwriters, who replied, " We author- 
ize you to sell cargo through Lloyds' Agent, if vessel has been con- 
demned, and cargo cannot be shippecL promptly." 

Held, there was a voluntary acceptance of the goods at Honolulu, there- 
fore the vessel is entitled to freight pro rata Uineris, which was found 
to be the cost of bringing such goods from Tacoma to Honolulu. 

I 

Submission. 

The undersigned, C. P. Olsson, Master of the Swedish bark 
Ida, plaintiff, and Theo. H. Da vies & Co., Agents of Lloyds and 
the Indemnity Mutual Marine Insurance Company, respectfully 
represent: 

That there is a question in difference between them which 
might be the subject of a civil action in the Supreme Court, 
based upon the following facts which are agreed upon. 

The bark Ida, of which plaintiff is master, sailed from Tacoma, 
State of Washington, with a cargo of lumber bound for Monte- 
video, on or about the 3d day of August, 1889. 

That said cargo consisted of 477,000 ft. of lumber costing ten 
dollars ($10) per thousand in Tacoma, and was shipped by Jas. 
E. Ward & Co., of New York, to be delivered to their order at 
said Montevideo. 

That said cargo was insured in Indemnity Mutual Marine 



44 JANUARY, 1890. 

Insurance Company, and at Lloyds, but that these parties are 
not informed whether the freight thereon is insured or not. 

That upon the 10th day of October, 1889, said bark put into 
Honolulu in distress, that her cargo was discharged for the pur- 
pose of making an examination of her condition, and upon sur- 
vey said bark was found to be unseaworthy and condemned as 
unfit for repair. 

That in consequence of the condition of said vessel said voy- 
age was broken up. That it is impossible for the master to ob- 
tain another vessel in the Hawaiian Kingdom to carry said 
cargo on to its port of destination. 

That the plaintiff notified the owners of the cargo of the fore- 
going facts, who replied that they had referred the matter to 
the underwriters, that the latter by telegram authorized the 
plaintiff as follows : "We authorize you to sell cargo through 
Lloyds' agent if vessel has been condemned and cargo cannot 
be transhipped promptly." 

That the plaintiff is ready to sell the cargo as above author- 
ized, which can be sold in Honolulu for about $16 per thousand, 
but claims that he is entitled to freight from Tacoma to Hono- 
lulu, and has a lien on the cargo for the same, as well as for ex- 
penses incurred in discharging said cargo in Honolulu, and in 
piling, storing and insuring the same against fire, and that 
upon a sale of said cargo would be entitled to a lien upon the 
proceeds from the same in consequence of the authority given 
him to sell, all of which claims the defendant disputes. 

That it was necessary to discharge said cargo in order to ex- 
amine the condition of the vessel. 

That the usual freight upon such a cargo from Tacoma to 
Honolulu is the sum of $6.50 per thousand, that there is no es- 
tablished rate of freight from Honolulu to Montevideo, and to 
carry said cargo a vessel would have to be obtained in the 

# 

United States. 

And it is agreed that the question as to the liability of the 
cargo to the payment of freight from Tacoma to this port, as well 
as for said other costs and expenses, or any part of the same re- 
spectively, shall be submitted to Your Honors. 



OLSSON V8. DA VIES. 46 

The charter party, bill of lading and all correspondence be- 
tween the parties filed herewith shall be taken as a part of this 
submission. 

Correspondence. 

The correspondence referred to in the submission, and made 
a part thereof, is as follows : 

New York, July 2, 1889. 

Master Bark Ida, Puget Sound: 

Dear Sir : After receiving on board your vessel a fiill 
cargo as per your charter party, and having signed bill of lading 
therefor, you will please proceed to the port of Montevideo and 
upon your arrival report to Messrs. Giosul Bonomi & Sons, who 
will give you instructions for the discharge of your cargo. 
Wishing you a pleasant and speedy voyage, 

We are, yours truly, 

James E. Ward & Co. 



Honolulu, Nov. 16, 1889. 
Messrs. James E. Ward & Co., 

P. O. Box 1023, New York : 

Gentlemen : The Swedish bark Ida, Capt. Olsson, came into 
this port on Oct. 10th, in a leaking condition. His papers show 
that she has a cargo of lumber on board for your account from 
Tacoma to Montevideo for order. The cargo had to be dis- 
charged and is now piled in proper manner and in a good 
place, for your account, and I have insured the cargo against 
fire risk. Repairs to the vessel, ordered by our local surveyors, 
will cost more than three-fourths of the sum insured and there- 
fore the vessel will have to be condemned and sold. 

Will you please inform me what you intend doing with the 
cargo? It will hardly be possible to charter a vessel here to 
take the cargo on to Montevideo, but I think there will be no 
difficulty in selling the same here and realize cost or very 



46 JANUARY, 1890. 

nearly coBt. If you have no one else I shall be glad to attend 
to this here for you. 

Awaiting your reply by return of mail, 

I remain, gentlemen, respectfully yours, 

C. BoLTE, Acting Consul. 



San Francisco, 13 Dec, 1889. 

The Captain Swedish Bark Ida, Honolulu, H. I. : 

Dear Sir : Under telegraphic instructions received to- 
day from Lloyds' agent at New York, we beg to append copy 
of telegram for you : Write Captain of Ida, Honolulu, we, 
Lloyds' agents. New York, and Indemnity Mutual Marine In- 
surance Company, holders of endorsed bills of lading and char- 
ter party, authorize you to sell cargo through Lloyds' agent, if 
vessel has been condemned and cargo cannot be transhipped 
promptly : to which we would ask your attention and will 
thank you to acknowledge receipt of this letter in due course. 
We are, dear Sir, Yours faithfully, 

Cotton, Bell & Co. 



Opinion op the Court, by Dole, J. 

Under the circumstances shown by the submission, the ques- 
tion whether or not the underwriters have voluntarily accepted 
the goods at Honolulu must be decisive of the case. It is es- 
tablished by all the authorities "that if the shipper voluntarily 
accepts the goods at the place of disaster, or at any intermedi- 
ate port, such acceptance terminates the voyage and all respon- 
sibility of the carrier, and the master is entitled to freight pro 
rata itineris" Propeller Mohawk, 8 Wall., 161 ; Hunt V8, Haskell, 
24 Me., 342; 1 Parsons' Shipping and Adm., 239, 240, and 239, 
note 2. 

The defendants' counsel contends that there has been no 
voluntary acceptance, but one " from necessity, incase the master 
chooses to give up the cargo." 



OLSSON VB. DAVIES. 47 

It seeniB to us that the correspondence above set forth proves 
that the underwriters made a proposition to the plaintiff, which 
being accepted by him amounts to a voluntary acceptance of the 
cargo on their part. The plaintiff notified the owners of the 
arrival of the vessel at Honolulu in distress, of the discharge of 
her cargo for the purpose of making an examination of her con- 
dition, of her condemnation or the probability thereof, and of 
the impossibility of procuring another vessel at the Hawaiian 
Islands for transporting the cargo to its destination. The 
owners were also requested to state their intentions in regard to 
the cargo, and were informed that a sale here would realize cost, 
or very nearly cost. The owners replied that they had referred 
the matter to the underwriters, now the defendants, who tele-, 
graphed to the plaintiff: "We * * * authorize you to sell 
cargo through Lloyd's agent if vessel has been condemned and 
cargo cannot be transhipped promptly." 

Upon the receipt of this telegram the vessel had been con- 
demned, and it was clear that the cargo could not "be tran- 
shipped promptly; " and the plaintiff acceded to the request and 
authorization of the underwriters, and is ready to sell the cargo 
as soon as the issue before the Court is disposed of. 

The underwriters might have refused to receive the cargo at 
Honolulu, and, upon a failure of the plaintiff to deliver it at 
Montevideo, would not have been liable for any part of the 
freight and would have had their remedy against the ship- 
owners for non -performance of the charter party. On the other 
hand, the master might have refused to allow a sale of the cargo in 
Honolulu and insisted on his right to deliver it at Montevideo, 
and thereby to earn his whole freight, and would in that case 
be entitled to a reasonable time to procure another vessel ^r 
that purpose. Neither of these courses were pursued, but instead, 
the underwriters made a proposition to the master to sell the 
cargo at Honolulu, and the master consented thereto. This was 
a voluntary acceptance ; the contract contained in the charter 
party, for delivery of the cargo at Montevideo at a certain rate of 
freight, was waived by mutual consent, which waiver relieved 
the defendants of the obligation to pay the freight mentioned in 



48 JANUARY, 1890. 

the charter party, and the plaintiff of further responsibility 
under the same, and entitled him to freight or compensation for 
transporting the cargo pro rata itineris. Smyth vs, Wright^ 15 
Barb., 53 ; 1 Parsons' Ship, and Adm., 239. 

Judge Story, in The Nathaniel Hooper, 3 Sumn., 565-6, makes 
the following comment, which is applicable to the case before us : 
"The next question is, whether there is any just claim to a pro 
rata freight. I think there is. Taking all the circumstances 
together, I think the farther prosecution of the voyage has been 
abandoned or waived by both parties. The ship-owners have 
sold their ship, and can no longer complete it. The under- 
writers on the one-third of the cargo have not asked to have the 
voyage prosecuted. The owners of the other two-thirds have 
asked it, but under circumstances in which it became impossible 
for them to ship it. The parties have therefore withdrawn 
from the contest, without having been able to prosecute the voy- 
age, or effectually to seek its prosecution beyond the port of 
Boston. The just operation of the law upon this state of things, 
in my judgment, is that which I have indicated. The owners 
of the cargo are content to take their goods here, and the ship- 
owners to leave them here. It is, if I may so say, a reluctant 
acquiescence forced upon them by an overruling necessity. I 
shall therefore decree a pro rata freight." 

It is implied by defendants' counsel that the master refused 
to forward the goods to the port of destination, and therefore the 
acceptance by the defendants under such circumstances does not 
in law imply a promise to pay freight to the intermediate port. 
We are unable to find in the submission any evidence whatever, 
either direct or inferential, that the master refused to tranship 
the goods ; neither is there any evidence that the defendants in- 
sisted upon the performance of the contract. So far as we can 
gather from the case as submitted to us, they freely and will- 
ingly, after being in possession of the facts, adopted the plan of 
giving up the voyage, dissolving the charter party and closing 
out the cargo in Honolulu ; they preferred this to a tranship- 
ment of the cargo, unless such transhipment could be made 
promptly, which was impossible. The cases quoted by de» 



OLSSON V8. DA VIES. 49 

fendants' counsel as authority upon this point are hardly ap- 
plicable ; that portion of the case of The Nathaniel Hooper ^ 3 
Sumn., 550, referred to, and Vlierhoom vs. Chapman, 13 M. <fe W., 
239, raised the question of pro rata freight, which was not 
allowed, upon perishable goods, which had been sold from abso- 
lute necessiiy by the master in an intermediate port. 

Caze vs. Bait, Ins, Co,, 7 Cranch, 361, was a case of abandon- 
ment : and Metcalf vs, Britannic Ins, Co,, 2 Q. B., 423, affirms 
the rule which we have recognized, but disallowed pro rata freight, 
solely on the ground that there was no evidence of a mutual 
waiver of a prosecution of the voyage, or of a voluntary accept- 
ance of the goods at the intermediate port. 

In regard to the rule for ascertaining the amount of freight to 
which the master is entitled, we find that several methods have 
been adopted by the Courts. Parsons, in 1 Shipping and Ad- 
miralty, 243, says : " It is not quite certain how the proportion 
shall be calculated when pro rata freight is due. There are in 
fact but two ways of doing this. The part of the voyage for 
which freight is to be paid may be a geographical part or a com- 
mercial (meaning a pecuniary) part. That is, the shipper may 
be held' to pay, as in the earlier cases, so much per mile or 
league for what has been done out of the whole voyage, or else 
so much as it would cost to bring them to the port at which the 
goods are accepted. Every rule must be a modification of one 
of these. The latter rule is that which we think is favored and 
will be generally adopted in this country." This latter rule is 
supported in the case of Coffin vs. Storer, 5 Mass., 251. 

We are unable for want of data to use the first rule, and 
would, in any case, prefer the second in an issue like the one 
before us, in which the defendants appear to be ^benefited by 
the transportation of the goods to Honolulu in an amount nearly 
coinciding with the regular freight from Tacoma to Honolulu, 
which is agreed upon in the submission as $6.50 a thousand, 
which, with the purchase price of $10, is about equivalent to the 
market price in Honolulu. 

We allow the plaintiff freight £vccx)rdingly, with the accustomed 

rates for pickets, laths and short lengths, and also his necessary 
4 



50 JANUARY, 1890. 

expenses for the removal from ihe dock, piling and insurance of 
the cargo, but not for the expense of discharging the same, the 
charter party providing for the delivery of the cargo from the 
ship's tackles. 

A, S. Hartwell, for plaintiff. 

F, M. Hatch, for defendant. 



KAHOOHULI vs, HAMAUKU et a?. 

Exceptions to Order of Judd, C.J. 

Hearing, January 24, 1890. Decision, February 6, 1890. 

Judd, C.J., McCully, Bickerton, Dole, JJ. 

A deed to Hamaukn of land on King street, Honolnln, described by Boyal 
Patent, *^ excepting that portion on the North (or right hand) portion 
of the house lot, where the dwelling house stands— that shall be for 
young 3^oohuli and his heirs," etc. Hoohnli brought suit to recover 
this part of the land of Hamauku^s heirs. 

Held, on demurrer, that the portion of the lot where the house stands 
was not made the subject of a grant to HoohuU, and its reservation 
did not give title to him. 

By the Court. 

Upon consideration of the pleadings and the law in this case, 
we are opinion that the demurrer should be sustained, and we 
therefore confirm the decision of the Chief Justice, upon the 
reasoning and authorities therein. 

A. Rosa, for plaintiff. 

W. A, Kinney, for defendants. 

Opinion of Chief Justice Judd, Appealed From. 

This is an action of Ejectment brought at the April Term, 
1887, to recover possession from one John Hamauku of a piece 
of land on King street opposite Kawaiahao Church. 

The then defendant demurred to the declaration in that it 
did not set forth the nature and extent of the estate claimed 



KAHOOHULI rs. HAMAUKU. 61 

by plaintiff. At the July Term, 1887, the plaintiff, With the 
leave of the Court, filed an amendment to the declaration. The 
case went over the January Term, 1888, it not being reached. 
At the Special Term, February, 1888, the parties waived a jury. 
On the 27th March, 1888, the defendant died and plaintiff filed, 
on the 8th November, 1889, a suggestion to this effect, and 
moved that Paalaa, widow, and Edwin, lokepa and Keoni, 
minor children of said J. Hamauku, be substituted as defend- 
ants. The motion was granted and service made upon Paalaa 
and on W. 0. Smith, the Probate guardian of the minors. 

By the amended declaration plaintiff claims title to the 
premises in dispute, in fee simple, by virtue of a clause in a deed 
of Hana Haalilio to John Hamauku, the original defendant, 
dated the 19th April, 1869. 

To this the defendants now demur that the deed referred to 
discloses no title in the plaintiff, or, if any title, not the title 
claimed by plaintiff. 

The plaintiff bases his claim to the premises on the deed to 
the defendant's ancestor, John Hamauku. This deed is made 
by Hana Haalilio and conveys to St. John Hamauku all the 
grantor's land on the Island of Oahu, and particularly describes 
the various parcels, some five in number, in consideration of 
fifty dollars paid to her by said John Hamauku, and describes 
him as her " keiki," which may mean son or nephew. He was, 
I believe, her nephew and she had no children of her own. 
Among the lands granted is " the piece of land at Kawaiahao 
on King street, mauka of the church, w^hich was awarded in my 

name, being Royal Patent No. and the area being 

acre, more or less, excepting however that portion on the north 
(or right hand) portion of the house lot where the dwelling 
house stands ; that shall be for young Hoohuli and his heirs, 
and if he shall die without heirs then it shall belong to St. John 
Hamauku and his heirs. The annual receipts and rents of the 
place mentioned in this paper (deed) shall belong to the one 
whose name is mentioned as stated in this paper (deed). And 
the said place cannot be sold as long they both live on good 
terms and are not opposed to each other." 



52 JANUARY, 1890. 

The claim of the plaintiff Peter Kahoohuli is based upon the 
clause of the deed above recited. 

I consider that this clause excepts out of the estate granted to 
Hamauku the lot where the dwelling house stands. It is not a 
technical reservation, for it does not create a new right in behalf of 
the grantor out of the estate granted and which did not exist as 
an independent right before the grant. See Tiedman Real 
Estate, §843. 

Chancellor Kent defines a reservation to be a clause in a deed 
whereby the grantor reserves some new thing to himself issuing 
out of the thing granted and not in esse before. 4 Kent, p. 468. 

A common illustration would be the right of the grantor to 
take wood or water from the granted premises for a limited 
term. 

The clause in question creates an exception, for it withdraws 
from the operation of the conveyance some part of the thing 
granted, which but for the exception would have passed to the 
grantee under the general description. Tiedman Real Estate, 
§843 ; 3 Washburn R. P., p. 646 (Ed. of 1876.) Here the part 
of the premises on King street where the dwelling house stands 
is excepted. It is a part of the land granted to Hamauku, and 
would go to him under the general description were it not for 
the exception. But the difficulty in this case is that it is not 
excepted to the grantor and her heirs and made the subject of 
a valid, independent grant by her to the plaintiff, Kahoohuli. 
If it were so, the plaintiff^s title would be good. But it is an 
exception to a strtoger to the deed, and without consideration 
moving from him. 

By the authorities Hoohuli would take nothing. 

In Coming vs, Troy Factory^ 40 N. Y., 209, Stephen Van 
Rensselaer conveyed a farm, without reservation or exception, 
to Jeremiah Lansing. Lansing conveyed the same premises to 
David Defreest " excepting and always reserving one acre of 
land on the south side of the creek, etc., unto Stephen Van 
Rensselaer, his heirs and assigns forever." The Court held that 
the exception in the deed prevented this one acre from vesting 
in Defreest, but that it was wholly inoperative to vest in Van 
Rensselaer any title. 



KAHOOHULI V8. HAMAUKU. 53 

In West Point Iron Co. vs. Reymert, 45 N. Y., 707, the Court 
held that " a reservation in a deed will not give title to a stranger, 
but it may operate, when so intended by the parties, as an ex- 
ception from the thing granted and as notice to the grantee of 
adverse claims as to the thing excepted or reserved." 

" A reservation in a deed saving to the public any right they 
may have to take seaweed from the premises confers no right 
upon any one having no other right." Hills vs. Lords, 48 Me., 
83. Here the Court say, " such a reservation in a deed confers 
no rights, proprio vigore, upon any one. It merely saves the 
grantor, upon his covenant against incumbrances, from any 
liabiiit)^ if such rights have been previously granted qr acquired.' 
See also Richardson vs. Palmer, 38 N. H., 212 : Ives vs. Van 
Auken, 34 Barb., 566. 

In HomhecJc vs. Westhrook, 9 Johns., 72, a deed contained a 
proviso that the inhabitants of Rochester should be allowed to 
cut and carry away wood from any part of the land conveyed, 
etc. The Court held the proviso to be null and void. " If the 
inhabitants were incompetent to take an estate at law, by that 
name, a reservation to them in a deed in fee to a third person 
would be equally void. But such a covenant or reservation to 
any third person would be void. A person who is not a party to 
a deed cannot take anything by it, unless it be by way of re- 
mainder. The grantor cannot covenant with a stranger to the 
deed." See Moore vs. Earl of Plymouth, 3 B. & A., 71. 

I am of the opinion that Peter Kahoohuli, plaintiff, takes 
nothing by the exception in the deed and that the demurrer 
must be sustained. This view is strengthened by the clause at 
the end of the deed of the grantor Hana Haalilio, wherein her 
husband, W. H. Kahoohuli, in consideration of the sum of 
twenty dollars paid to him by St. John Hamauku, assents and 
conveys all his right in the propertj^ of his wife to St. John 
Hamauku, his heirs and assigns, as stated in this deed. No 
assent by the husband to the exception (calling it a conveyance 
to the plaintiff) can be shown, and without it the married 
woman's conveyance of her land would be void. 

Demurrer sustained. 



54 JANUARY, 1890. 



KAHULA V8. H. Z, AUSTIN. 

Exceptions from Second Circuit CorRT. 
. Hearing, January 24, 1890. Decision, February 7, 1890. 
judd, c. j., mccully, bickerton, dole, jj. 

In an action of tort, the defendant, a Bohool teacher, having cut the hair 
of a pupil, the plaintifTs daughter, without consent: 

Held, that an, officer of tl}e Board of Health had no authority to direct 
the school teacher to do it, and that the school teacher, being with- 
out authority to cut the hair as a sanitary measure, could not, either, 
do it as a punishment. 

Opinion of the Court, by McCully, J. 

This was an action of tort brought in the Police Court of 
Wailuku, Maui, appealed to the Circuit Judge in Chambers, 
from whom exceptions were taken to the Circuit Court of the 
Second Judicial Circuit, which overruled pro forma the excep- 
tions taken to the rulings of the Circuit Judge in Chambers, 
which bill of exceptions and the records and papers on file are 
the matter before this Court. 

We quote what is necessary, viz :* 

Statement of Facts. 

The parties admit that on the 10th day of October, A. D. 
1889, Kela, being a minor daughter of Kahula, the plaintiff in 
this suit, and attending as a scholar in the Waihee Government 
School, of which H. Z. Austin, the defendant in this suit, is the 
principal teacher, there and then the said defendant did cut the 
hair of the minor, Kela, against her wishes and against the 
wishes of the said plaintiff. Plaintiff has demanded $50.00 
damages of said defendant. Said defendant refuses to pay the 
same, and pleads justification in law. 

G. Herbert, sworn : I am the Government physician for the 
District of Wailuku. It is part of my duties to examine the 



, KAHULA V8, AUSTIN. 55 

school children in the district. Know Kela ; I did not order her 
hair cut. The vermin could have been removed by other means. 

Cross-examined. About nine days before the 10th of Octo- 
ber I examined the Waihee School children and examined 
Kela ; cannot say what the condition of her head was. My gen- 
eral instructions to H. Z. Austin were, as I saw that some of the 
children had vermin and sores on their heads, that the 
hair should be properly cleaned, and that I would provide some 
salve for the purpose ; but if they should neglect to do so, after 
due notice had been given to them and their parents, then their 
hair should be removed. I gave the order both as a physician 
and as an oflficer of the Board of Health from a sanitary point 
of view, for the sake of the health of the children infected and 
for the cleanliness of the school. From my present examina- 
tion of Kela's head I see no necessity of having had to cut her 
hair at the time. 

Plaintiff rests. 

H. Z. Austin, sworn : As near as I can remember, Dr. Her- 
bert's instructions to me, after his finding out that some of the 
scholars were infested, were that he would provide the salve 
and soap and that I must tell their parents that if they did not 
clean the heads of their children then I should cut off their 
hair. My attention was called to the condition of the head of 
this child Sarah or Kela by my assistant teacher, in whose 
room she is, and on my looking I saw that she was so infested; 
then I took Sarah and gave her in charge of my school officer 
and told him to take her to her mother to clean her head. The 
next day Sarah returned to school still dirty ; I asked her if 
her mother had cleaned her head, she answered no, so I set her 
aside with others to have their hair cut that day. 

The assistant teacher testified to the same facts. 

The Circuit Judge held that the defendant was not justified 
by law in his proceeding, and confirmed the judgment of the 
Police Court awarding the plaintifi* one dollar damages. 



56 JANUARY, 1890. 

By the Court. 

m 

The justification claimed for the assault is "that the Board of 
Education or the Board of Health have the right to make such 
rules with regard to the cleanliness of scholars as they may 
deem necessary, and that such rule was made in this case, and 
that the rule and its application in this case has not exceeded 
their authority." Defendant's Brief. 

We must distinguish the authority of the Board of Health 
and of the Board of Education. 

We know of no authority in the Board of Health to enforce 
cleanliness of the person in a matter where there would be no 
authority to quarantine to prevent the spread of dangerous 
diseases. The Board has authority to proceed only according 
to rules adopted and promulgated, and there is no rule applica- 
ble to the case described, and probably no rule could be sup- 
ported on the ground of the necessity of protecting the public 
health. It is also to be said that the Board of Health could not 
exercise special authority over school children other than that 
founded on their powers in the case of contagious diseases. As 
Dr. Herbert would have had no authority to cut the girl's hair, 
he could not authorjze the teacher to do it. 

The Board of Education and the teacher, who in this OAse 
may be treated as one, have the power of the government and 
discipline of the school. By section 24 of the School Act, C. L. 
page 206, "Each teacher shall have the power to administer 
necessary and reasonable punishment upon the "pupils of his 
school and shall not in any way be punishable for so doing." 
The justification must be as a punishment if it was not a legal 
sanitary measure. 

Punishment is inflicted for disobedience. Who was disobe- 
dient in this case? The defendant testifies, " I gave her in 
charge of my school officer and told him to take her to her 
mother to clean her head." The next day it appeared that the 
mother had not obeyed the order. 

But is cutting the hair a " reasonable punishment " at all ? 
It may be a matter of mutilation. In the case of a girl pupil 
particularly it might be an intolerable outrage for a teacher to 



MAHOE vs. KAUHI. 57 

cut her hair off. It needs no exposition to show what flagrant 
violation of personal right might be inflicted if this were justi- 
fiable as a punishment. 

Is there then no protection for the teacher and other scholars 
from contact with a pupil in an offensive condition from pre- 
ventible causes ? Yes. We deem it within the authority of the 
teacher to order that such a pupil be not allowed to attend 
school until it is made decent, and we are of opinion that the 
absence being so ordered would not justify the " person respon- 
sible for the child as a minor " in proceedings under the Act for 
enforcing the attendance of children at school, Chapter 43 of the 
Laws of 1888. 

The exceptions are overruled. 

V. V. Ashfordy for plaintiff. 

A. P. Peterson, Deputy Attorney -General, for defendant. 



MAHOE (w.) and C. B. KANAKANUI, her husband, vs. 

A. KAUHI and KEAHI. 

Appeal from Preston, J. 

Hearing, January 24, 1890. Decision, February 10, 1890. 

JuDD, C.J., McCuLLY, Bickerton, Dole, JJ. 

An Attorney having been employed to purchase land for another, took the 
deed in his own name. 

Held, that on the payment of the purchase money to the Attorney, he muBt 
execute a deed of the land to the Plaintiff. 

IJeciston of Preston, J., Appealed from. 

This is a suit for a declaration that a purchase of land, made 
by the defendant Kauhi in his own name, was made by him as 
the agent and for the use of the plaintiff Mahoe and the defend- 
ant Keahi. The defendant Kauhi denied the agency, and 
averred that if there had been an agency it had been determined. 



58 



JANUARY, 1890. 



The defendant Keahi, at the hearing, disclaimed any interest in 
the purchase. . 

After a careful consideration of the testimony, I have arrived 
at the conclusion that the defendant Kauhi was emplo3''ed by 
Mr. Wundenberg, who Kauhi knew was acting for the plaintiffs, 
to purchase the land in question ; that he did purchase the land 
before such agency terminated, and took a conveyance thereof to 
himself contrary to his duty. 

The defendant Keahi having disclaimed any interest in the 
property, I am of opinion that the plaintiffs are entitled to have 
the land conveyed to them, or either of them, as they may elect. 

A decree must be made declaring that at the time of purchase 
of the land in the bill referred to, the defendant Kauhi was the 
attorney and agent of the plaintiffs, and improperly took the 
conveyance thereof in his own name ; that upon payment by the 
plaintiffs to the said defendant, within ten days from the signing 
of the decree, of the sum of two hundred and twenty ($220) 
dollars, the said defendant is declared to be a trustee of the said 
land for the plaintiffs, and that he thereupon execute and de- 
liver to the plaintiffs, or to either of them, as they shall elect, a 
good and sufficient conveyance of the said land. And that the 
defendant Kauhi pay to the plaintiffs the costs of this suit. 

The bill will be dismissed as against the defendant Keahi, but 
as I am not satisfied that he has been straightforward in this 
transaction, I am not inclined to award him costs, and he must 
therefore pay his own. 

Opinion of the Full Court, by Bickerton, J. 

This is a question of fact, and depends entirely on the weight 
of evidence and the credibility of the witnesses. 

It is contended by defendant's counsel that the evidence of 
Wundenberg stands alone as to the fact that Kauhi was em- 
ployed by him to purchase the land in question for the plain- 
tiffs ; and claims that Mr. Wundenberg only employed him to 
negotiate for the purchase of the land and did pot mention that 
it was for the plaintiffs ; that offers were made and that the 
negotiations failed and that he ceased to act as agent for Wun- 



MAHOE V8. KAUHI. 59 

denberg, as Wundenberg would not offer more, and consequently 
he was free to purchase the land for himself. 

On a careful examination of the evidence, this contention does 
not seem to be correct, on the contrary, the evidence fully sus- 
tains the finding of fact appealed from. Kanakanui testifies that 
after they had brought suit against Kekaina (Kauhi's grantor) 
which they had to discontinue in consequence of the death of 
Mr. A. C. Smith, their attorney, they authorized Mr. Wunden- 
berg to go and buy the land for them ; that he, Wundenberg, 
employed Kauhi; that Kauhi told him that he was so employed, 
witness's wife and another being present at the time. Witness 
also says : " Afterward he came to me and said he had offered 
the man sixty dollars and he would not take it, and I reported 
it to Mr. Wundenberg and found out that he had not been 
limited to money, but not to act like a crazy man in making the 
purchase." There is also the evidence of several witnesses that 
Kauhi went to plaintiff's house with Kekaina and talked with 
Mahoe about the purchase of this land ; this was before he, 
Kauhi, purchased it in his own name. 

The defendant Kauhi testifies that Kanakanui told him the 
deed to Kekaina was fraudulent ; this was at the time Mahoe 
and Kekaina had the conversation about purchase of land, and 
some months after his conversation with Wundenberg; also, that 
Mr. Wundenberg told him the deed to Kekaina was a fraud ; 
also, that Kanakanui had taken steps towards opposing that 
deed. 

Mahoe (w), one of the plaintiffs, testifies that she knew Wun- 
denberg had employed Kauhi, for Kauhi told her so. She says : 
*' Kauhi told my husband and myself, and also Keahi, that 
Wundenberg had employed him to buy the land for us ; that is, 
for my brother and myself; but he did not say that Wunden- 
berg had limited him to $50.00." 

It is clear that Wundenberg's evidence does not stand alone ; 
it is well supported by evidence of the other witnesses. There 
is no doubt in our minds that Kauhi knew that Mr. Wunden- 
berg was acting for the plaintiffs to purchase the land in ques- 
tion ; that the price was left to his judgment and that he was 



60 JANUARY, 1890. 

not limited ; that at the time he took a conveyance to himself 
his agency had not terminated, and that his taking the convey- 
ance to himself was contrary to his duty as agent and attorney. 

The appeal is dismissed, and the decree affirmed. 

W. A, Kinney, for plaintiff. 

W, C, Achi, for defendant. 



V. KNUDSEN V8. THE BOARD OF EDUCATION. 

Appeal from Bickerton, J. 

Hearing, January 24, 1890. Decision, February 24, 1890. 

JuDD, C.J., McCuLLY, Bickerton, Dole, JJ. 

(Mr. Justice Dole left for California after the hearing, before 

the decision was reached.) 

The survey of a site for a school-house, made in pursuance of Section 7 
of the Act of July 9, 1850, entitled ** An Act to provide for the better 
support and greater efficiency of the pnbho schools,** and occupation 
by the Board of Education of tlie site, is presumptiye evidence that 
the site was in use as such at the time the Act passed, and that it had 
been granted for this purpose by the owner of the land in which it is 
situated. The site did not pass to the lessee of the land, though not 
specifically excepted. 

Opinion op the Court, by Judd, C. J. 

The averments in the bill are substantially as follows : On 
March 7, 1853, Kamehameha III., being owner of the land of 
Pokii, containing 270 acres, situate in the district of Kona, Isl- 
and of Kauai, leased it to one John H. Gruben, for fifty years 
from the 1st July, 1852, for the rental of twenty-five cents per 
acre. On the 11th September, 1853, Gruben assigned one un- 
divided half of the said leasehold premises to one Archibald 
Archer, who, with the administrator of the estate of said Gru- 
ben, assigned on the 1st October, 1858, all the said leasehold 
premises to the plaintiff, who has ever since held the said 



KNUDSEN V8. BOARD OF EDUCATION. 61 

demised premises under the said lease, except so far as said 
lease was merged in another lease of the same land, since become 
a part of the Royal Domain, made to the plaintiff by the Com- 
missioners of Crown Lands, dated the 1st July, 1877, for thirty 
years ; that said Archer and Gruben entered and occupied the 
premises under said lease and assignment ; that a piece of land 
of about two acres in extent within the demised premises was, 
until recently, held by plaintiff*, and it has become of especial 
value to plaintiff ; that the defendant is now interfering with 
plaintiff^s use of said parcel and claims to be entitled to it by 
virtue of Royal Patent No. 39, dated in 1884, described therein 
as '^ Lot 2," and is against plaintiff's protest building a house 
thereon for a teacher's residence, and refuses to desist from so 
doing, or to accept another convenient site in said Pokii, which 
plaintiff* offered to defendant without prejudice. That as far as 
plaintiff 's rights in the land so patented are concerned, the said 
patent was issued without authority of law and inadvertently, 
and that defendant ought to be decreed trustee thereof to the 
use of plaintiff"; that plaintiff* on taking the aforesaid leases had 
no notice of defendant's claim to said parcel. 

The answer puts the plaintiff to proof of the first lease alleged 
in the bill ; admits the lease from the Commissioners of Crown 
Lands ; admits plaintiff's possession of Pokii, except the part 
described in lot 2 of said Royal Patent No. 39 ; and avers that 
the said lot has been in possession of defendant since 1853, and 
has been used by the Minister of Public Instruction and this 
defendant for public school purposes, under open and notorious 
claim of ownership, and that in 1855 defendant built a school- 
house, and that a school-house has been maintained and a 
school conducted on this lot continuously until 1886, when 
plaintiff, who was then school agent, without authority of law 
or the consent of defendant tortiously removed the schoolhouse, 
and attempted to appropriate the lot to his own use ; that plain- 
tiff has for twenty years last past resided near said lot, and 
during nearly all of the time been defendant's agent, and has 
been well aware of defendant's occupation of said lot. Defend- 
ant denies that said lot is or ever has been Crown Land, or that 



62 JANUARY, 1890. 

the Royal Patent No. 39 was issued without the authority of 
law or inadvertently, and avers that the Royal Patent was based 
upon a designation and setting apart of said land on the 12th 
January, 1854, in accordance with an Act of Legislature of July 
9, 1850, and of a resolution of the Privy Council passed in fur- 
therance of the Act, on the 23d December, 1850. 

By the Court. 

This case presents questions of such great importance to the 
community, as regards the interests of religion and education, as 
to require an extended investigation. 

The question of paramount interest involved in this case is 
the nature and validity of the titles of a large majority of the 
sites for schoolhouses and churches throughout this Kingdom. 

It must be borne in mind that upon the introduction of 
Christianity to this country and the conversion of large num- 
bers of the chiefs and people to its principles, the chiefs became 
zealous patrons of education, and even before the establishment 
of the Government in its present form, edicts were enacted by 
the King and the council of chiefs to stimulate the people to 
learning and religion. Among the earliest of these is the "Sta- 
tute for the Regulation of Schools," being Chapter 7 of the Old 
Laws, and passed by the King and chiefs on October 15, 1840. 
Its preamble is as follows : " The basis on which the Kingdom 
rests is wisdom and knowledge. Peace and prosperity cannot 
prevail in the land, unless the people are taught in letters and 
in that which constitutes prosperity. If the children are not 
taught, ignorance must be perpetual, and children of the chiefs 
cannot prosper, nor any other children;" therefore be it enacted, 
etc. The Act provides for the election of a school committee, 
and by it and the school agent the selection of teachers in the 
villages throughout the Kingdom. It provides for the securing 
of unoccupied land from which the teacher is to get his support, 
with a reversion of the land to the Alii ("King") translated in 
the English version, " Grovernment ", in case the teacher ceases 
to act as such. Provision is also made for the building of school 
houses by compulsory labor of the people. 



KNUDSEN V8. BOARD OF EDUCATION. 63 

A later Act of 13th May, 1842, made it a criminal offence for 
a land agent (konohiki) to refuse or withhold land when applied 
for by the General School Agent in accordance with the School 
Law. 

The next statute was passed in 1846 in the general acts or- 
ganizing the Government, Statutes of 1846 (vol. 1, p. 204). 
Among the provisions of this law is one that the general superin- 
tendent of each school " shall have power to allot land, not 
otherwise appropriated, to the teachers and to the schools of 
their respective district sub-divisions." "All lands so set apart 
shall be registered as school lands in the Interior Department, 
and shall be considered as set apart to eleemosynary uses," and 
the teacher for the time being had the use, occupancy and 
usufruct of the land, which passed to his successor. Section 14 
of this act provides that the general superintendent of each dis- 
trict shall, under the direction of the Minister of Public Instruc- 
tion, indicate the site for all schoolhouses. 

We must bear in mind that it was not until the organization 
of the Commission to Quiet Land Titles, which was accomplished 
by the general statutes of 1846, the chiefs and people had any 
titles to land ; and it was not until 1848 that the Mahele or 
great division was made, by which the interests of the King, 
chiefs and people in the lands of the Kingdom were separated, 
followed by the final act of the King ceding to the Government 
a portion of his reserved lands. 

This review is necessary to the proper understanding of the 
Act of July 9, 1850, which repealed the School Law of 1846. 
Section 7 of the Act of 1850 is relied on by the defendant as the 
foundation of its title to the parcel of the land in question. It 
reads: " All sites for schoolhouses and houses for public worship, 
now occupied and in use and not owned by private parties, and 
all lands connected therewith, granted either by the Govern- 
ment or by individuals, chiefs or landlords, with a view to promote 
the interests of education or religion, shall be reserved as Gov- 
ernment property, devoted to the purposes above mentioned • 
the amount of land reserved for such sites, however, not to 
exceed two acres in each case ; and in case the adjacent lands 



64 JANUARY, 1890. 

are sold or leased, such lands shall not be included." The Land 
Commission was in active existence at the time this Act was 
passed and was not finally dissolved until March 31, 1855, and 
this Act may properly be regarded as in furtherance of the 
general scheme of settling land matters, as well as providing for 
the education of the people. 

The section of the Act of 1850 above quoted clearly contem- 
plates that sites for school houses and houses for public wor- 
ship were occupied and in use at the date of the act, and we 
have seen that this taking of land for such purposes was author- 
ized by the early laws. These sites, as well as the lands con- 
nected therewith, were to be reserved as Government property 
devoted to the uses of education or religion. 

The claim cannot well be made that when the owner of the 
land, be he King, chief or private individual, or the Government, 
out of which these sites were taken, sold or leased the land 
that the site passed by the conveyance or demise, unless ex- 
pressly excepted. It was not necessary to except them in the 
conveyance, for the law excepted them. The State had taken 
these sites, not exceeding two acres in extent, wherever it was 
deemed desirable, throughout the Kingdom, by a quasi right 
of eminent domain, and reserved them as Government prop 
erty devoted to the purposes of education, if they were sites of 
school houses, and of religion, if they were sites of houses of 
worship, and their alienation was forbidden. We are thus led 
irresistibly to the conclusion of law, that if the parcel of land 
in controversy was, at the date of the Act of 1850, occupied and 
in use as a site for a schoolhouse, it did not and could not pass 
to Gruben by the lease of Kamehameha III., of March 7, 1858. 

It is urged that the title to the lot in controversy is not con- 
trolled by this Act, because sites for schoolhouses ^'owned by 
private parties" are exempted from the operation of the Act, 
and as Kamehameha III. owned the land of Pokii, he, as a ''pri- 
vate party", would own the school site within its boundaries, 
unless a written grant of the lot from him be shown. We re- 
gard this argument as unsound. The sites of schoolhouses 
contemplated by the Act were those for the public schools sup- 



KNUDSEN m. BOARD OF EDUCATION. 



65 



ported by the nation, and the clause "and not owned by pri- 
vate parties" was introduced for the purpose of excepting pri- 
vate schools, of which there are a few instances, mainly in 
Honolulu, from the operation of the Act. When the site was 
taken under the Acts of 1840 or 1846, for a public school. Sec- 
tion 7 of the Act of 1850 applies to it. 

The Act required the sites of schoolhouses or houses for pub- 
lic worship then in occupation, referred to in Section 7, or 
thereafter to be taken for schoolhouse sites, referred to in Sec- 
tion 9, to be surveyed, as well as the lands connected there- 
with, and registered in a book, to be deposited in the office of 
the Minister of Public Instruction for the use of the King's 
Government, the expense of the surveys to be defrayed out 
of the avails of school lands — clearly showing that only public 
schools, supported by the State, were referred to. We have 
intimated that the taking of the sites by the State was valid, 
even if out of lands then owned by the King. The King 
is not specifically named in Section 7 of the Act, but the word 
"chiefs," which in the Hawaiian version is "na Lii," would in- 
clude the King. The King was in ancient times often called 
"Ke Lii Nui," "the great chief," and he is still called '^Ke Lii." 
Vide Declaration of Rights of Kamehameha III. and Kekau- 
luohi, of October 8, 1840, on page 5 of the Hawaiian version. 

Having thus settled what we deem to be the law which should 
control this case, a brief review of the facts established by the 
evidence becomes necessary. We find them to be substantially 
as follows: At some time previous to 1853, a grass schoolhouse 
was built on the lot in question and was occupied as a school 
until it was replaced by a wooden one in 1862. A survey of 
this lot, of two acres in extent, made by J. W. Makalena, a 
surveyor employed by the Department of Public Instruction, 
dated the 2d of February, 1853, approved by the Minister of 
the Interior and the Minister of Public Instruction, January 
12, 1854, is in existence on the files of the Land Office. This 
schoolhouse site was used as such until 1886, when the school- 
house was removed therefrom by plaintiff. 

Orrmia praesumuntur solenniter esse dcta, "All acts are pre- 
sumed to be rightly done." The survey of the site for the 
5 



66 JANUARY, 1890. 

Bchoolhouse, made regularly according to the Statute of 1850, 
while it was in force, is preBumptive evidence, first, of the fact 
that the site was in use as such when the Act was passed, and, 
second, of the fact that it had been granted for that purpose by 
its owner, the King. 

At this lapse of time, when nearly all the actors in these 
transactions are dead, we are authorized to infer that the site 
in question had been taken for a schoolhouse, and was used 
and occupied as such when the Act of 1850 was enacted. This 
presumption is reinforced by positive testimony that at some 
period previous to 1853 a grass schoolhouse had been built on 
the lot and was occupied as a public school, and by the fact 
that it had been used and occupied as a site for a schoolhouse 
thereafter and until 1886, when the house was removed by 
plaintiff. 

Having come to these conclusions, it is unnecessary to dis- 
discuss many matters upon which the evidence is contradictory 
and uncertain. 

We cannot find that the Royal Patent No. 39, which is 
proffered by defendant as its title, was issued, as far as plaint- 
iff's rights are concerned, without authority of law and inad- 
vertently. The title of the defendant as a Department of the 
Government, in charge of the educational interests of this King- 
dom, to this lot would be good as against plaintiff without the 
issuance of this patent to it. But the patent was regularly 
issued in pursuance of an Act of the Legislature of the 13th 
August, 1880. 

The decree of Mr. Justice Bickerton dismissing the bill is 
sustained. 

A, S, HartweU, for plaintiff. 

A. P, Peterson^ Deputy Attorney-General, for defendant. 



THOMAS V8. NORTON. 67 



E. B. THOMAS vs. G. B. NORTON. 

Quo Warranto. Appeal prom Bickerton, J. 

Hearing, Maroh 6, 1890, Decision, May 1, 1890. 

judd, c.j., mccully and bickerton, jj. dole, j., absent. 

The provisions of the Act ^^Belatiiig to the Fire Department of Hono- 
lulu,'* approyed September 6, 1888, constitute the Board of Bepreeen- 
tativee of the Fire Department, the judgfes of the validity . of ekotions 
of officers of the department. 

The writ of Quo Warranto will not lie to inquire into the validity of the 
election of First Assistant Engineer. 

Demurrer to the petition sustained, and writ quashed. , 

Opinion of the Court, by Judd, C.J. 

We have examined this case and the well-presented argu- 
ments of counsel on both sides, and have come to the conclusion 
that the demurrer should be sustained and the writ quashed on 
the ground stated by Mr. Justice Bickerton in his opinion 
dated the 14th January, 1890. 

Opinion op Mr. Justice Bickerton, Appealed From. 

The petitioner prays that a writ of Quo Warranto do issue^ 
directed to said George B. Norton, inquiring by what authority 
he claims to hold the office of First Assistant Engineer of the 
Fire Department, and directing him to file his answer within 
the time limited by said writ; that upon due hearing the elec- 
tion for said Assistant Engineer may be declared illegal, null 
and void, and the said Norton adjudged to have usurped said 
office and be ousted from the same, etc., etc. 

The defendant demurs to plaintiflTs petition on the following 
grounds: 

1st. Because the Board of JKepresentatives of said Fire De- 
partment are by law the judges of the validity of elections of 
officers of the Fire Department. 



68 MARCH, 1890. 

2d. Because the complainant has not set out in his petition 
any facts which will support the same. 

3d. Because the remedy by Quo Warranto is given by 
statute only in cases of corporations. 

And files a motion to quash the writ as follows: 

'*Said defendant moves to quash the writ issued in the above- 
named proceedings, for the reason that there is no authority of 
law for the issue of the same." 

This matter has been very fully argued by counsel on both 
sides, and shows that a great deal of work and research has 
been done by plaintiff's counsel to sustain his position. 

I have given this matter very full and careful consideration, 
and have come to the conclusion that the case must be decided 
and disposed of on the first ground of demurrer, viz: That the 
Board of Representatives of the said Fire Department are by 
law the judged of the validity of elections of the officers of the 
Fire Department. 

The Act of 1888, relating to the Fire Department of Hono- 
lulu, is the law under which this ground comes. Section 4 
reads: **The elections provided for in Section 2 of this Act shall 
be conducted in such manner as the by-laws of the Depart- 
ment shall prescribe. In case there shall be no election, or 
any office, shall become vacant, the Minister of the Interior 
shall direct a new election," etc., etc. 

Section 10 provides that the Board of Representatives shall 
have power **to hear and determine appeals from decisions of 
company matters and other appeals, and make rules and regu- 
lations in all matters of appeal." Also "to make all necessary 
rules and regulations for the holding of any election or elec- 
tions under this Act, to make rules, by-laws and regulations for 
the Fire Department, and for carrying out the provisions of this 
Act." 

These sections certainly give the Fire Department full power 
to do all things necessary for the holding, conducting, and de- 
termining the result of elections, and must of necessity in- 
clude the power to decide who is elected, where there is any 
dispute. The Board of Representatives do not preside at the 



THOMAS V8. NORTON. 69 

elections. The secretary is chairman at the election for en- 
gineers with two tellers to assist him at the polls. (Section 8, 
By-laws.) It cannot be contended that his decision is final. 
If the chairman's decision is not satisfactory, or there are ir- 
regularities, or fraud in the voting, there must be an appeal 
from him. The question is to whom? It can only be to the 
Board of Representatives, for the Act provides that they shall 
hear and determine not only appeals from decisions in com- 
pany matters, but all other appeals, and make rules and regu- 
lations in all matters of appeal. If it had been the intention 
of the Legislature to have only provided for appeals in com- 
pany matters, they would not have made these other sweeping 
provisions. It is clear to me the Legislature intended to give 
and have given the Board of Representatives full power to act 
in all these matters. What can be clearer than the language 
used in the latter part of Section 10, viz.: "to make all neces- 
sary rules and regulations for the holding of any election or 
elections under this Act, to make rules, by-laws and regulations 
for the Fire Department and for carrying out the provisions of 
this Act." 

One of the provisions of the Act is that there shall be a chief 
engineer and two assistants, to be elected biennially. * * * 
Under Section 4, in case of no election, the Minister of Interior 
shall direct a new election. * * * It could not be said the 
Minister of Interior could say there was no election. Then 
who has the authority? It is clear to me that the Board of 
Representatives only has that authority under the Act, and all 
appeals on election matters must go to them, and they must 
decide. 

"Statutes must be interpreted according to the intent and 
meaning, and not always according to the letter." 

"A thing within the intention is within the Statute." 

"Statutes should be interpreted according to the most natural 
and obvious import of their language." 

"In construction of a Statute, every part of it must be 
viewed in connection with the whole, so as to make all its 
parts harmonize, if practicable, and give a sensible and intelli- 
gent effect to each." 



70 APRIL, 1890. 

"Every L^islative Act must have a reasonable construc- 
tion." 

" That which is implied in a Statute, is as much a part of it 
as what is expressed." 

Dwarris on Statutes, Potter's Edition, pp. 144 and 145. 

Having come to the above conclusion, it is unnecessary to go 
further; for even if I should find that the Fire Department was 
a quasi-corporation, the writ should not issue. Section 44, p. 
593, Compiled Laws, reads: "Where the Legislature has granted 
to a corporation the right to determine the validity of the elec- 
tion of its nlembers or oflScers, a writ shall not be issued for the 
purpose of inquiring into that fact." 

The deiAurrer is sustained on the first ground, and the mo- 
tion to quash the writ issued is granted with costs. 

W, A, Kinney^ for plaintiff. 

F. M. Hatch y for defendant. 



AHLO v%. AIAU. 
Exceptions. 

Hearing, April 1, 1890; Decision, May 1, 1890. 
judd, c.j., mccully, bickerton, jj : dole j., absent. 

The findings of fact of a jnstioe trying a case, with jury waived, will only 
be set aside when the verdiot of a jury would be set aside. 

Opinion of the Court, by McCully, J. 

This was an action of ejectment, the jury waived, and tried 
by the Chief Justice, who found for the plaintiff for one un- 
divided half of the land claimed and $50 damages. 

The d^endant, in a bill of exceptions, claims (1) that the 
decision does not accord with the testimony, and (2) that the 
Court erred in finding that one Napahi was related to Kekue- 
liilii, the patentee of the premises. 

We regard the first point as too vague to be considered. In 
respect to the second point, the testimony given in support of 



AHLO vs. AIAU. • 71 

the relatioTiBhip would have justified a jury in the same finding 
which the Court made, and upon well-settled principles such a 
verdict would not be set aside, and the finding of the justice 
will not be set aside. 

Exceptions overruled. 

W. R. Castle^ for plaintiff. 

8. K. Kaney for defendant. 



G. W, C. JONES V8, S. NORRIS. 

Exceptions. 

Hearing, April 1, 1890. Decision, May 5, 1890. 

JuDD, C.J., McCuLLY, Bickerton, JJ : Dole, J., Absent. 

An estate having been sold on the 2l8t day of September, with a covenant 
against incumbrances, and with no ezprese agreement concerning the 
payment of the taxes: 

Held, that the taxes became a fixed charge against the owner of the pro- 
perty on the first of July preceding, although the valuation of the 
property had not then been determined by the assessor ; 

Held, that when a case has been tried by a Justice of the Court with jury 
waived, the Court in banco will not on a bUl of exceptions review his 
findings of facts, otherwise than it would the verdict of the jury. 

Opinion of the Court, by McCully, J. 

The case, assumpsit, was heard by Chief Justice Judd, sitting 
with jury waived. He found in favor of the plaintiff for a 
certain. amount under his claims. The defendant excepts to the 
findings on the fact and law, by the Justice hearing the case. 

The exception to the finding that the defendant should pay 
the taxes involves a question of law which we will examine 
first. The language of the Court upon this item of claim is this: 
*' I think the defendant should pay the taxes advanced by the 
plaintiff. The taxes were assessed as of the 1st of July, but 
they were not payable until the 15tli of November, about two 



72 • APRIL, 1890. 

months after the sale. Taxes are an annual charge upon pro- 
perty by virtue of law and they should be {.aid by the defend- 
ant as the owner of the property, on the same principle that he 
must pay the annual rents accruing after the sale.'- 

The tax referred to is the real estate and chattel taxes upon 
the "Kahuku Ranch." This property comprises land and 
buildings, cattle and horses and other live stock, with grazing, 
agricultural and dairy tools and implements. It was sold by 
plaintiff to defendant September 21, 1888, by a deed of warranty 
and covenant that the premises were free and clear of all incum- 
brances. 

The plaintiff continued to reside on the premises demised for 
some months after the sale, by an amicable agreement of the 
parties, the defendant being absent in Honolulu or in Califor- 
nia, and during this time the plaintiff, among other payments 
claimed to be made on defendant's account, paid the taxes. 

The contention of the plaintiff is that the tax was not due, 
and a fixed charge or lien on the estate sold, until after the date 
of sale, whereby it was not an incumbrance which the plaintiff 
was bound to pay. The defendant to the contrary. 

The Statutes which relate to the assessment and payment of 
taxes, as they stood at the time of the sale, in respect of dates, 
are in substance as follows : 

The returns by owners of real and of personal property were 
to be made as of the first of July. C. L. p. 123. 

The assessor was appointed on or before the first of July, and 
it was his duty to notify residents of his district to make their 
returns to him at a designated place and on dates in the month 
of July. 

The assessor is required to have his tax list open for inspect- 
ion from September 20th to October 1st, and to give public 
notice of the time and place or places for this, and persons dis- 
satisfied with the taxation may then take their appeals. 

The Courts of tax appeal sit at appointed times in the month 
of October. 

The tax collector calls for the payment of taxes in the month 
of November and December, not later than the 15th of Decern- 



JONES »«. NORRIS. 73 

ber, after which date he may levy for unpaid taxes on sufficient 
of the goods and chattels, or may sue for them. 

This Court has held in Hilo Sugar Company vs, ^Minister of 
Finance, 7 Hawn., 665, that property within the Kingdom on 
any part of the first of July was taxable to the owner, although 
it was then on ship board and during that day was transported 
abroad, affirming the case of Brewer & Co, V8» Tax Collector, 6 
Hawn., 554. No stronger case could be presented of the appli- 
cation of the liability which attaches on the first day of July. 
Our Statutes make no difference between real and personal 
property in respect to the charge of the tax being upon the 
owner, at the date selected for the falling of the tax, the first of 
July, although the payment of the tax upon real estate is se- 
cured notwithstanding the sale or transfer of it, by attaching a 
liability to the real estate itself. The debt of the tax is still 
upon the owner. The act of assessment must necessarily be 
subsequent to the day -when the ownership is fixed. The obli- 
gation is perfect at that time to pay an amount which shall be 
determined by the assessor, subject to the action of the Appeal 
Board. The assessor has not to asceraain who may be the own- 
ers of the property of his district at any other date, or at the 
date of the completion of his assessment list, on or before the 
15th of September. If that were the case, what would be the 
force of the provision that the ownership shall be reported as it 
stood on the first of July? There is no provision of the Statute 
for reporting to the assessor the changes in ownership which 
may be made during the time of making up the assessments, 
and he is not required to find them out. We have observed 
above that real and personal property are treated alike. For 
an illustration of the confusion which would arise in following 
a fugitive ownership, take the case of a thousand dollars cash 
in the possession of A. on the first of July, and, instead of tax- 
ing him for that whenever the assessment is completed, it has 
to be taxed in the hands of those to whom it has passed subse- 
quently and may be at the date when the assessment of differ- 
ent individuals may be entered. But our law imposes no such 
difficulty. The work of the assessor relates to the first of July 



74 APRIL, 1890. 

and the charge is fixed on that day, whatever may be the subse- 
quent date when the assessor makes up the assessment of indi- 
viduals and completes the entire district. 

In the case before us the tax was upon both real and per- 
sonal property. It cannot well be contended, and it has not 
been, that the tax on the personal property does not adhere to 
the owner of it July 1st. We see no reason to support the 
proposition that that portion of the tax which was on the real 
estate was fixed at any subsequent date. It cannot be sup- 
ported by the provision that in case of transfer of real estate 
the tax may be held as a lien upon it, for that is merely an ad- 
ditional or cumulative remedy beyond the provision that levy 
may be made upon the goods and chattels for the taxes due by 
an individual, whether upon real or personal property. The 
tax-collector looks to the plaintiff personally for the taxes on 
the property owned or possessed by him on the first of July, 
and may sue him, or levy upon his goods and chattels, or for 
that portion of the tax which is laid on the real estate he may 
attach it, even after its sale. The covenant in the deed protects 
the purchaser, if this latter remedy is pursued. 

In support of the views above expressed we may cite the 
general observation made in Hilliard on Taxation, p. 171: 
"Assessments must be made against the party who owns the 
property on the day in each year in which the assessment is by 
law to commence, quoting from State vs. Hardin, 34 N. J., 80. 
The practical effects of a different construction were confusion 
in the transfers of property, hindrance in the ordinary transact- 
ions of business, and difficulty in rendering a full and true 
account of rateable property by the owners thereof whenever the 
assessors might call for it." 

The findings of the Chief Justice in respect to the other items 
held to be made on the defendant's account are all dependent 
on questions of fact, and we consider that must stand, unless 
set aside for such reasons as would set aside the verdict of a 
j^ry. 

As we reverse the finding of the Chief Justice which made 
the defendant liable for the taxes, this amount, $367.04, must 



KAMAI V8. TRASK. 75 

be subtracted from the sum of $667.36^, for which the plaintiff 
recovered judgment below, leaving the sum of $300.32^, for 
which sum, with costs and commissions, the plaintiff may take 
judgment. 

W, 0, Smithy for plaintiff. 

F, M, Hatch, for defendant. 



J. KAMAI V8. A. G. TRASK. 

Appeal from Commissioners of Ways. 

Hearing, April 25, 1890. Decision, May 1, 1890. 

judd, c.j., mccully and bickerton, jj. dole, j., absent. 

A. oonveyed land to B. in 1869 by metes and bounds, describing^ one side 
of the lot as bounded by a narrow lane. The same day A. oonveyed 
by metes and bounds to C. another lot on the other side of the lane, 
describing it as bounded by the lane. A still owned land in the rear 
and had access to the street through this lane. In 1877 A. sold the 
remainder of his land (what had not been conveyed to B. or C.) in- 
cluding the lane, to the grantee of C. G. closed up the lane in 1H88. 

Held, that the grant of the lot by A to B., describing it as bounded by 
the lane, A owning the lane, estopped A. and his grantees from deny- 
ing the esistenoe of the lane. 

The award of the Commission of Private Ways, ordering the defendant 0. 
to re- open the lane, affirmed. 

Opinion of the Court, by Jddd, C.J. 

This case comes to us by the defendant's appeal from the 
Commissioners of Private Ways, etc., for the district of Hono- 
lulu. 

It seems that on 6th August, 1869, one Keawekalohe, who 
owned a piece of land at KakaakO; Honolulu, (described in 
Land Commission Award, No. 3455), sold a portion of it to one 
Kailua and on the same day sold another portion of it to one 
James Wright. A lane was left between these two lots, and 
each lot was described in the deeds of conveyance as bounded 



76 APRIL, 1890. 

by this lane. Keawekalohe still owned the rear portion of the 
land from which the lots sold to Kailua and Trask were taken, 
and had access to the street through the lane. 

The plaintiff, J. Kamai, is the owner, by title not disputed, 
of the lot conveyed to Kailua. In 1877 Keawekalohe sold to 
defendant, Trask, all of his land described in Land Commission 
Award, No. 3455, which had not been conveyed to Kailua or 
Wright. His conveyance carried the fee in the lane to Trask. 
In 1883 James Wright conveyed the lot he had bought of Kea- 
wekalohe to defendant Trask and his wife. The lane continued 
open and in use by all these parties until 1888, when it was 
closed by defendant by his building a cottage upon it. 

The Commissioners of Private Ways were applied to to order 
defendant to re-open the lane, and after hearing the evidence 
they ordered the lane opened by defendant. 

By the Court. 

The Commissioners were right. The general doctrine is that 
"a grantor of land describing the same by a boundary on a 
street or way, if he be the owner of such adjacent land, is estop- 
ped from setting up any claim, or doing any acts inconsistent 
with the grantee's use of the street or way; and such estoppel 
would also apply to his heirs, or those claiming under him." 
Howe V8, Alger, 4 Allen, 211. 

This doctrine is not extended to a grantor, merely intending 
by the description to fix the boundaries, he not having any in- 
terest in the soil of the street. Id, 

We have no hesitation in adopting this doctrine. 

In Pennsylvania it is held that when a grantor sold and con- 
veyed lots, bounding them on an alley, he not only conveyed the 
use of the alley as appurtenant to the lots bounded thereon, but 
thereby dedicated it to public use. Transue vs. Sell, 105 Pa., 
609. 

Chief Justice Cooley, in Smith vs. Lock, 18 Mich., 59, says: 
"The purchase of the lot described as bounded on a street es- 
tops the grantor from shutting it up so as to prevent his grantee 
making use of it for his own accommodation in the enjoyment 



PUUKU V8. KALELEKU. 77 

of his purchase. It is a matter of private right, and in no way 
depends upon the question whether the public have acquired a 
right of way or not." See Parker vs. Smith, 17 Mass., 413. 

Appeal dismissed. 

W. 0, Smith, for plaintiff. 

W. C. Achij for defendant. 



REBECCA P. PUUKU vs. PUUKU KALELEKU. 

Question Reserved by McCully, J. 

Hearing, April 25, 1890. Decision, May 31, 1890. 

JuDD, C.J., McCully and Bickerton, JJ. Dole, J., Absent. 

Question : Whether proof of non-oonsent of a party to marriage can in 
this Kingdom be held a ground for the annuhnent of marriage.^ 

Held, that the power to anuul marriage is based solely on the statute, is 
limited by it, and that a decree of annulment must state a statute 
ground therefor; that hence a decree cannot be granted in the case"^ 
submitted. 

Opinion of the Court, by MoCully, J. 

This matter comes before this Court upon a question reserved 
by Mr. Justice McCully. He sent it up with a full report of 
the testimony and his findings thereon, as follows: 

Question Reserved. 

In the above recited testimony there is a disagreement only 
in one particular, the defendant testifying to a cohabitation at 
some time subsequent to the marriage, the plaintiff denying 
any cohabitation at any time. I think the latter testimony is 
consistent with the other proofs of non-cohabitation, and from 
my view of the witnesses it is the version which is to receive 
credit. 

The case then stands, that the plaintiff never gave a consent 
to the marriage. It is true that she uttered an assent which 
was forced by the dominant authority of her chief, an assent 



78 APRIL, 1890. 

evidently expressed, or not denied, before the minister who per- 
formed the marriage ceremony, but immediately interpreted 
and revoked by her escape. Only the clearest proof all around 
could bring me to this conclusion. I would not consider the 
mere denial of a young girl unsupported by circumstances and 
extraneous proof. It is here proved that the defendant never 
asked her to marry him. The parties had' no social acquaint- 
ance with each other. I take the circumstance of non-cohabita- 
tion without considering whether under our statutes what is 
termed a consummation of the marriage would be necessary, 
and the failure of consummation would not be a ground of 
annulment (physical inability not being alleged). 

Our statutes prescribe a ceremonial or formal marriage, not 
necessarily a religious one. They prescribe that a license to 
marry shall be obtained from an appointed agent, and that the 
ceremony be performed only by a person having an authoriza- 
tion thereto. These may be termed external provisions for the 
regulation of the making of marriages, acts required by other 
persons. As between the parties it is termed the marriage 
contract. C. L., p. 423. It is not expressed in our statutes 
that there must be the consent of each party thereto, but in my 
opinion so much as that is involved in the term contract. The 
doctrine of law respecting contracts must be applied; there 
must be a mutual consent, the consent of each party. 

But the grounds for an annulment of marriage are distinctly 
prescribed. It is a statute power given to Justices of the Su- 
preme Court, and the power is limited to what is granted. Any 
decree of annulment, it appears to me, must be based on one of 
the specific statute grounds. 

I take leave to reserve for the consideration of the Court in 
Banco the question whether a proof of non-consent can be in 
this Kingdom held a ground for the annulment of a marriage. 

By the Coubt. 

We believe the question here presented is new in this Court. 
It may be that the grave doubt whether the Court could go be- 
yond the powers clearly given by statute has prevented an ap- 



PUUKU V8. KALELEKU. 79 

plication for annulment of marriage on the ground of non-con- 
sent. It may be, and this seems probable, that no such case 
has been known where a non-consent, and a persistent after re- 
fusal to give consent, could be so clearly proved as has been in 
the case before us. We take it to be an absolute fact of the 
case that this plaintiff never gave the consent of her mind to 
this marriage. 

The statute under which nullity of marriage may be made by 
the Court is Section 1313 of the Code. It provides that it may 
be pronounced for either of six enumerated causes existing at 
the time of the marriage, among which is not the cause, non- 
consent, upon which this suit is brought. Has the Court 
power to annul a marriage on any other ground? 

In support of the affirmative it is submitted by petitioner's 
counsel that the language of the statute is permissive in its na- 
ture, that there are no words of a restrictive character, such as 
are found in the statute of divorce, where the language used is, 
"Divorces from the bond of matrimony shall be granted for the 
causes hereinafter set forth, and no other.^^ But an enumera- 
tion of allowed causes should be construed as an exclusion of 
others. The statute concerning divorces, enacted in 1870, 
bears the marks of design to be particularly stringent and to 
check a too great facility in obtaining divorces. It cannot, 
however, be considered that the use in this of the negative 
phrase, **and no other," can operate to allow other statutes, not 
employing equivalent words, to be construed more liberally 
than they would have been otherwise. The general rule of 
construction, expresHo unius est exclusio alteriu$y is still operative 
on them. But without the application of this maxim the re- 
sult must be the same, when it is considered that the power to 
decree annulment of marriage is purely a statutory one, and ex- 
tends only to what is affirmatively given by the statute. 

There is nothing like a common law authority here, in ac- 
cordance with which the enumerated causes are expressly al- 
lowed, with a remainder of authority upon which the Court 
may proceed when there are no negative restrictions. 

The often-quoted Sections 14 and 823 are here cited as author- 



80 APRIL, 1890. 

ity for the Court to go outside of what is expressed in the stat- 
utes. The leading case upon these sections is Kake vs, Horton, 
2 Hawn., 209. An action on the case wjis brought under the 
generally expressed authority of Section 1116 for the institution 
of suits for the recovery of damages for injuries, direct or con- 
sequential. This action would not lie by the common law of 
England, as the death of a human being could not in a civil 
action be complained of as an injury. There was nothing in 
our statute controlling the decision, and the Court held that 
the common law would not in this particular be adopted 
here, but adopted the rule of the civil law under which such 
action might be brought. 

It is a matter of constant practice in our Courts to cite and 
adopt the reasonings and principles of law as found in the de- 
cisions of the Courts of other countries, and it is necessary to 
do so, because everything which controls the decision of a case 
may not be found in any of our statutes. For instance, the 
question whether a contract is supported by consideration; 
what elements must exist to sustain an action for malicious 
prosecution; and in innumerable questions arising in civil ac- 
tions, must resort be had to what is known as legal authorities 
and legal reasoning. But we know of no instance in which the 
Court has ventured to enlarge its statute powers, as would here 
be done by decreeing an annulment upon a ground distinctly 
different from any enumerated in the law. It can make no 
difference that the case, in which it is desired that the Court 
shall assume a power, is a plain case and of great hardship. We 
cannot well conceive of a case more urgently requiring a rem- 
edy than the one before us, nor of one better supported by a legal 
principle, namely, that it is of the essence of a contract, and 
certainly of a marriage contract, that there should be the consent 
of mind of both parties to it, freely and voluntarily and truly 
expressed when the marriage ceremony is performed. It is the 
sine qua non of this ceremony; the only question being, Does 
each party take the other to be his or her wife or husband? 

But it may be well that no statute provision allows inquiry 
into the voluntariness and truth of the apparent consent. 



KNUDSEN V8. STOLZ. 81 

t 

It is clear that a decree of annulment must set forth the 
ground thereof. No statute ground could be set forth. The 
Court would appear to have exceeded its jurisdiction and its 
decree to be void upon its face. 

The case is remitted to the Justice before whom it is pending, 
with the advice that the decree prayed for cannot be granted 
on the ground of non-consent. 

J, M. DavidsoUy for the petitioner. 



V. KNUDSEN VB. L. H. STOLZ, Deputy Collector of Taxes. 

Exceptions. 
Hearing, April 25, 1890. Decision, May 31, 1890. 

judd, c.j., mccully and bickerton, jj: dole, j., absent. 

The Supreme Court has jarisdiction to hear cases relating to the assess- 
ment and ooUection of taxes, notwithstanding the provision of a Tax 
Appeal Court, from which there is no appeal, whenever it appears 
that there are involved questions touching the oonstitntionality or 
oonstmotion of the Statute. 

The existence of a clause in a lease providing that the lease shall not be 
assigned by the lessee without the previous consent of the lessor, 
under penalty of forfeiture of the lease, does not exempt such lease- 
hold premises from the tax to which leaseholds are liable. 

A tax which was based on an estimate of the iaoome derivable through 
the remainder of the term of the lease, held to be virtually an income 
tax, and not legal 

Opinion op the Court, by McCully, J. 

The case comes up on a bill of exceptions from a judgment 
rendered by Chief Justice Judd, who tried the case, a jury 
being waived. The exception is in general terms to the de- 
cision and judgment, and says that the Court erred in giving 
judgment for the plaintiff, and says that said decision is con- 
6 



82 APRIL, 1890. 

trary to law and the evidence given, and refers to and makes a 
part of the bill the evidence taken and exhibits filed. What is 
necessary from these will be stated in the opinion. The de- 
fendant is the assessor and tax-collector of the plaintiff's dis- 
trict. The plaintiff paid him, under protest, the sum of $1,800, 
to recover which he brings this action. 

In the general exception a contention is made that the Court 
has not jurisdiction herein, because the law has provided 
another court, the Court of Tax Appeals, having exclusive and 
final jurisdiction. This point was not presented as a plea in 
bar, requiring to be decided as a preliminary, hence the whole 
case was heard without a decision on this head. 

The Statute, as last amended, is Sec. 40, of Chap. 68, of the 
Laws of 1888, which is as follows: 

"Any person whose name may appear on such tax list, and 
who shall have made his returns to the assessor as hereinbefore 
provided, and, if entitled to exemption, shall have claimed such 
exemption, and who may deem himself aggrieved by any ex- 
cess made by the assessor in the valuation of the property as 
returned, or in the amount and character thereof, or whereby 
the amount payable by such person is increased beyond the 
amount which would be payable by him according to such re- 
turn, or whose claim for exemption shall not have been allowed, 
may appeal from such assessment on lodging with the tax as- 
sessor, on or before the fifteenth day of November, a notice 
thereof in writing, stating the grounds of his objection to the 
assessment, or to any part thereof, and depositing therewith 
the costs of such appeal." 

The plaintiff has claimed and claims that he is entitled to an 
"exemption" which has not been allowed, and that the "amount 
and character" of his assessment are erroneous in law. The 
Court of Tax Appeal has decided against his claims, affirming 
the assessment of the assessor. He has paid the judgment un- 
der protest, and now in this Court brings his action to recover 
the amount. Is he barred? 

In Widemann V8. Minister of Finance^ 3 Hawn., 789, the 
Court says the Legislature has constituted a tribunal, which 



KNUDSEN VB. STOLZ. 83 

tribunal is not the Minister of Finance, therefore the Minister 
is not authorized to abate taxes. In Bishop vs. Judd, 4 Hawn., 
30, the Court quote the above case as authority for the proposi- 
tion that a special remedy, which is exclusive by appeal to the 
Tax Appeal Board, has been provided for parties who have 
been wrongly assessed. In the first of the above cases the 
Court could not give the plaintifi" relief although in a case 
where the assessment was claimed to be clearly erroneous, be- 
cause he had made no return and therefore was bound by the 
action of the assessor, but in the second, the Court says that the 
plaintiffs claimed that the law was unconstitutional, "a matter 
which could not be raised before the Tax Board nor be brought 
from the Board to this Court, no appeal therefrom being pro- 
vided." In Smith vs. Kockemann^ 3 Hawn., 320, the Court 
considered whether property was entitled to exemption which 
was held by a church for its use and benefit; and in Bishop vs, 
Gulick, 7 Hawn., 627, whether property held in trust for the sup- 
port of a school was exempt. In Haiku Sugar Co, vs. Birch, 4 
Hawn., 275, the Court considered whether a valuable water ditch 
was exempt from taxation as against the claim that the usufruct 
of it was taxed in the land to which the water was applied for ir- 
rigation. In Turton vs, Kapena, 5 Hawn., 278, the Court enter- 
tained the question whether there had been an error in the as- 
sessment with respect to certain mortgages, it being claimed 
that there had been an erroneous construction of the statute by 
the assessor. 

In Castle vs. Luce, 5 Hawn., 321, the claim was for the re- 
funding of a sum paid as taxes, under protest, upon annual 
premiums received, the plaintiffs contending that the statute 
applied only to premiums received on new policies issued. 
In Hilo Sugar Co. vs. Minister of Finance, 7 Hawn., 665, the 
question was upon the exemption or liability upon merchandise 
shipped for export, but not yet transported beyond the King- 
dom on the first day of July. In Union Feed Co, vs. Luce, 7 
Hawn., 64, the Court held that the plaintiff was bound by the 
amount of the assessment fixed by the assessor, without right 



84 APRIL, 1890. 

of appeal to the Tax Appeal Board, since it had not made its 
return within the time prescribed by the statute. 

From this review of all the reported tax cases in the Supreme 
Court, we (Jerive the rule that in all cases where there arises a 
question of the constitutionality or construction of law, the mat- 
ter may be heard in the Supreme Court, and for this reason the 
Board of Tax Appeal is not the Court of final resort for the de- 
termination of the law in this Kingdom, but the Supreme 
Court is, and there cannot be an inferior jurisdiction which 
shall exclude the jurisdiction of the highest tribunal, in ques- 
tions of law. These cases have not come to the Supreme Court 
by appeal from the Tax Appeal Board, no appeal lying there- 
from. They have been brought in some instances as submis- 
sions without action, between the owners of property and the 
Minister of Finance or the tax collector, and sometimes as actions 
against the collector for recovery of money paid under protest. 

The Court has in no case reviewed the discretion of the as- 
sessor in fixing a value merely. For a mere excess made by 
the assessor in the valuation of property as returned, the only 
remedy is in the Tax Appeal Board. The return must have 
been made within the time prescribed by law. It does not ap- 
pear in any case that resort may be had to the Supreme Court 
unless a return has been made to the assessor and the claim of 
exemption made therewith. The tax in question is laid upon 
the value of two leases from the Commissioners of Crown 
Lands to the plaintiff. The leases each contain a covenant 
that the lessee will not demise, let, sell or assign the premises 
without the license and consent of the lessee in writing first 
obtained, under penalty of forfeiture of the lease. Leasehold 
interests in lands and real estate are personal property and 
taxable. (Sec. 16 of Tax Act, p. 120, C. L.) The interest of 
any person as tenant, lessee or occupier of any real estate 
that is exempt from taxation shall be assessed to such person, 
who shall be liable to taxation in respect of such interest. 
(Sec. 27, p. 122, C. L.) By this provision the lessees of Crown 
Lands, which are exempt from taxation, are liable to taxation 
upon their leases. The plaintiff's contention that he is not so 



KNUDSEN VB. STOLZ. 85 

taxable is based on Section 28, found as amended at page 61 of 
the Acts of 1886 : the full cash value of the interest of any 
person in any real or personal property shall be estimated at a 
sum which such interest might reasonably be expected to bring 
at a sale by public auction for cash : in that a lease which is 
forfeitable by a sale or transfer is of no value. If this view of 
the law were correct it would have a wide application, not 
limited to Crown Land leases. It is a common provision in 
leases. If by the insertion of a clause for non-assignment the 
lease could be exempted from taxation it would become by so 
much more valuable, and it would be a question between land- 
lord and tenant who should take the annual sum thus protected 
from the tax-collector. It is safe to say that tenants would pay 
no more taxes in this kingdom. 

It is to be observed that upon consent being given to assign, 
these leases may be sold — so they have a value, if the lessor 
permits. The liability of property to taxation then would de- 
pend, not upon the law, but upon the will of lessors — a con- 
struction leading to a legal absurdity. These leases are made 
to the lessee, ^' his successors, administrators and assigns." No 
one will contend that they are not valuable personal property 
passing to the lessee^ administrators without condition, and to 
assigns upon a condition. But the provision of Sec. 28 must be 
considered a rule of estimation merely. Under such a rule, the 
value of the leasehold property to the plaintiff might be rated. 
So property in which the holder has only a life interest has a 
value assessable, although not saleable, and it would not be the 
value of the life interest which would be assessed, but of the 
entire estate — going to the foundation of the rule in the Statute. 
How is the estimate of the sum which a property would sell for 
made, but upon the view of the income, rents or usufruct deriv- 
able from it, and the certainty thereof, in connection with the 
rates of interest on money ? And what such income is to the 
owner without a sale, affords. the basis of its value to him who 
is the person now to be taxed. We hold that a leasehold with 
such a clause against assignment is not thereby exempted 
from taxation. 



86 APRIL, 1890. 

Upon the remaining question, of the legality of the tax im- 
posed, Vie cite and adopt the statements and reasonings of the 
learned Chief Justice : 

" The evidence shows that the plaintiff has a contract for 
cultivating sugar cane on parts of the leased premises, which 
produced him a profit of about eighteen thousand dollars for 
the year 1889. About eight hundred and ninety (890) acres of 
the premises held under these leases are cane laud. The uni- 
form rate of assessment for cane land, adopted by the assessors 
for the island of Kauai, is one hundred dollars per acre. The 
assessor claimed that he figured the value of the leasehold in- 
terest at one hundred and eighty thousand dollars, because an 
income of twenty thousand dollars a year for the remainder of 
the term of the leases would amount in eighteen years to three 
hundred and sixty thousand dollars, and he allowed fifty per 
cent, of its valuation for possible contingencies, and assessed it 
at one hundred and eighty thousand dollars, of which the tax, 
at one per cent., would be eighteen hundred dollars. It will 
thus appear that the leasehold interest is assessed for double 
the amount that it would have been assessed at if the land were 
owned in fee simple by the plaintiff. 

" While I am not authorized in this case to consider questions 
of mere excess of valuations, this fact shows to my mind that 
the assessor has not in fact assessed the value of the leasehold 
interest, but he has assessed to the plaintiff the probable income 
from the contract for cultivation of cane during the next eighteen 
years. 

" Our law does not recognize the validity of a tax upon in- 
come. Only tangible property is assessed, and cash, and 
although I recognize the correctness of the principle that the 
leasehold may have taxable value as such, yet the facts of this 
case show to me conclusively that this has not been done in this 
case. It is not a correct principle to tax a man yearly on the 
full amount of his profits on a contract for a series of years. An 
income tax would only make him pay his income for the year 
of assessment. In this case, if this assessment should be allowed 
to stand, the plaintiff would be paying every year a tax upon 



KAILIAHI V8. KEPAU. 87 

the whole amount of his gains for eighteen years, which would 
be a gross injustice. 

** For these reasons I find that the assessment of 1;he value of 
the contract is illegal, and that the plaintiff should recover the 
sum which he claims." 

The exceptions are overruled and judgment for the plaintiff 
affirmed. 

A. S. Hartwell and F. if. Hatch, for plaintiff. 

Attorney-General C. W. Ashford, for defendant. 



KAILIAHI V8. KEPAU. 

Exceptions. 

Hearing, June 17, 1890. Decision, July 25, 1890. 

JUDD, C.J:, McCULLY, BiCKERTON, DoLE, J J. 

Under Section 1330 of the Civil Code, the question of the husband's hav- 
ing reduced to possession ohoses in action of his wife, who obtains a 
divorce from him on the ground of his adultery, or other offense 
amounting thereto, is not applicable. 

Opinion of the Court, by McCully, J. 

The defendant brings exceptions from Judd, C. J., sitting as 
Intermediary Court, in which it is claimed that some findings 
are contrary to the evidence, but no particulars of the evidence 
having been reported, no review can be made. 

The only exception which can be considered is that the deci- 
sion is contrary to law, and the point presented was based upon 
these words of the decision: "Plaintiff was then a married 
woman, and has since obtained a divorce from her husband. 
Though the marriage was a gift of these chattels to her husband, 
they were not reduced by him to posscHsion, and by our Statute 
they would upon divorce remain the property of the wife." 

By Section 1330 of our Code, C. L. p. 438, it is clearly pro- 
vided that upon a divorce for the adultery, or other offense 



88 JUNE, 1890. 

amounting thereto, of the husband, all the property of the wife, 
even including that given to her by her husband, shall become 
hers solely and absolutely. This is not the case of the husband's 
right in the wife's choses in action, depending upon his having 
reduced them to possession during coverture. This would ap- 
pear to be the misapprehension of counsel in taking this excep- 
tion. See Estate of Kaluahine, 3 Hawn., 323; ITasslocher vs, 
Robinson, SKsiwn,, 802; Riemenschneider vs. KalaehaOn 5 Hawn., 
550. 

The exceptions are overruled. 

A. Rosa, for plaintiff. 

W. C, Achij for defendant. 



THEO. H. DAVIES & CO. vs. W. H. DANIELS. 

Appeal prom McCully, J. 
Hearing, June 17, 1890. Decision, July 17, 1890. 

JUDD, C.J., McCuLLY, BiCKERTON, DoLE, JJ. 

The oovenant on the part of the yendors in a bill of sale of merobandise 
in a store and the good- will of the business, for the time of five years 
within a radius of five miles, was that "they will not daring such time 
or in said area engage in or interest themselves in carrying on or 
oonducting a mercantile business, and if they, or either of them, shall 
so engage in mercantile business, they or he shall therehpon forfeit 
and pay to the said party of the second part, and his executors, ad- 
ministrators and assigns, one thousand dollars.'^ 

Held, although the sum of one thousand dollars is liquidated damages, 
equity has jurisdiction to enjoin the defendant from committing a 
breach of the covenant, it not appearing that the payment of the 
one thousand dollars was an alternative which the vendor (defend- 
ant) had the option to adopt, in lieu of a strict performance of the 
contract. 

Opinion of the Court, by Judd, C. J. 

Bill in equity, filed 24th February, 1890, to restrain defend- 
ant from engaging in or carrying on or conducting any mer- 



DAVIES vs. DANIELS. 89 

cantile business within a radius of five miles from the store 
sold by him to E. A. Bielenberg, in Wailuku, Maui, until the 
expiration of five years from the date of the bill of sale, to wit, 
until July 22d, 1892. 

On the 22d of July, 1887, the defendant, W. H. Daniels, with 
W. H. Cummings, then doing business in Wailuku, Maui, un- 
der the firm name of Daniels & Cummings, sold their goods 
and merchandise, together with the good- will of the business 
and the lease of the store, to one E. A. Bielenberg. The follow- 
ing covenant was included in the bill of sale: "And for the con- 
sideration aforesaid the parties of the first part do hereby as- 
sign, transfer and set over to the party of the second part their 
good-will in said business for the term of five years from the 
date thereof within a radius of five miles from said store, and 
covenant that they will not during such time or in said area 
engage in or interest themselves in carrying on or couducting 
a mercantile business, and that' if they, or either of them, shall 
so engage in mercantile business, they or he shall thereupon for- 
feit and pay to the said party of the second part, and his execu- 
tors, administrators and assigns, one thousand dollars." 

The bill alleges assignment of the rights of Bielenberg under 
said covenant, and all causes of action to accrue under the 
same, to the plaintiffs, and a violation of the covenant on the 
part of W. H. Daniels by his carrying on and conducting a 
mercantile business in Wailuku within five miles from said 
store since April, 1890. * 

The bill is demurred to and the case turns upon the con- 
struction to be given to the covenant above recited. 

Following Colby i?«. Bailey^ 5 Hawn., 153, we are of opinion 
that the sum of one thousand dollars mentioned in the cove- 
nant is liquidated damages, and the plaintiffs could recover 
this sum in an action of debt for a breach thereof, and would 
not be obliged to show the specific damages sustained. But 
there is nothing in the agreement to show that the pay- 
ment of this sum was an alternative which the vendor in the 
bill of sale had the option to adopt, and the payment, if 
made, stands in lieu of the strict performance of the agreement. 



90 JUNE, 1890. 

The cases usually cited in support of this proposition, that 
where the sums mentioned appear to be liquidated damages, 
the payment of them will absolve the covenantor from fulfilling 
his agreement, are like Woodward vs- OyleSj 2 Ver., 119, where 
the defendant agreed not to plow any part of the land demised, 
and if he did, to pay twenty shillings per acre, and it was held 
that he had the privilege to plow on paying the additional 
rent, and the Court refused to restrain him from doing that 
which the contract provided he might do. 

The better and more modern doctrine is, not that equity will 
not interfere to prevent a party from doing what he has agreed 
not to do, when liquidated damages are provided in case he does 
the act, but that, as laid down in Ropes vs. Upton, 125 Mass., 
260, '4f the substance of the agreement is that the party shall 
not do a particular act, and that is the evident object and pur- 
pose of the agreement, and it is provided that if there is a 
breach of the agreement the party shall pay a stated sum, 
which does not clearly appear to be an alternative which he 
has the right to adopt, instead of performing his contract," equity 
will restrain him from doing the act. 

We adopt the arguments and conclusions of Ropes vs. Upton ^ 
commending themselves as they do to our reason. The Court 
in the case say: "Naming a sum to be paid as liquidated dam- 
ages does not in itself conclusively establish that the parties 
contemplated the right to do the act upon payment of the com- 
pensation, and make an alternative agreement for the benefit of 
the party who has done what he has agreed not to do." 

We think the decree of Mr. Justice McCully, overruling the 
demurrer, should be affirmed, and it is done accordingly. 

F, M. Hatch, for plaintiffs. 

W. 0, Smith, for defendant. 



HENRY vs. MAIKAI. 91 



W. HENRY et al. vs. R. MAIKAI et al. 

Appeal from Commissioners of Ways. 

Hearing, June 17, 1890. Decision, July 26, 1890. 

JuDD, C.J., McCuLLY, Bickerton, Dolb, JJ. 

On a petition to open an ancient road across a land, it was shown that a 
road or path for horses and foot passengers had existed for many years 
across said land: 

Held, that the Ck)mmissioner was right in opening a road nine feet wide 
across the land; bat it mast be located on the line of the old road or 
path. 

Opinion of the Court, by Bickerton, J. 

This matter comes here on appeal from the decision of the 
Commissioner of Rights of Way for the District of Koolaupoko, 
Island of Oahu. 

The plaintiffs claim that a cart road should be opened across 
the defendants' land to enable them to haul their -sugar-cane to 
the mill. After hearing the evidence and arguments, the Com- 
missioner decided and ordered a road nine feet wide to be 
opened across defendants' land. On the matter being presented 
here, the Court ordered a survey and map of defendants' land 
and adjoining lands to be made, showing the location of roads, 
etc., etc. This was filed. 

It appears from the evidence that an old road or path had 
existed for many years across the defendants' land. The map 
locates this path along the northern boundary of the land; the 
map also locates the new road as claimed by plaintiff, across 
the center of the land. We do not find anything in the evi- 
dence that would warrant the changing of the location of the 
road from its original location, unless it might be the conven- 
ience of the plaintiffs, which would not be a good reason for do- 
ing so. 



92 JUNE, 18W. 

Where a right of way has been created by prescription or 
otherwise, it can be only be continued in the same location. 

There is nothing in the decision of the Commiyaioner to indi- 
cate what he intended to change in the location; he simply 
opens a road nine feet wide across the defendants' land, without 
locating it; it is fair to presume that he intended it to run on 
the same line as the ancient road. We therefore affirm the 
decision of the Commissioner, opening a road nine feet wide on 
defendants' land, running along the line of the old road, along 
the northern boundary, and above the small ditch now there. 

Costa to be divided between the plaintiffs and defendants. 

F, M, Hatch, for plaintiffs. 

S, K. Kane, for defendants. 

Concurring Opinion of Dole, J. 

I do not think that the evidence proves a right to a cart road, 
as a right of way nine feet wide must be admitted to be, but as 
the width of the right of way does not appear to be the issue on 
appeal, which is rather the location of the right of way, I with 
some hesitation concur in the above decision. 



ESTATE OF KEALIIAHONUI. 93 



ESTATE OF KEALIIAHONUI, Deceased. 
Appeal prom Bickerton, J. 

Hearing, June 17, 1890. Decision, June 25, 1890. 

McCuLLY, Bickerton, Dole, JJ : Judd, C.J., not sitting, hav- 
ing acted as Counsel in similar proceedings against the 
Estate. 

A petition for revocation of probate of a will was filed by " Kamehaoka- 
lani, a minor, by F. W. Malaihi, her next friend." The Rule of Court 
required that in every suit to be instituted on behalf of a minor by 
his next friend, it shall be incumbent to obtain the sanction of the Court 
or of one of the Justices thereof before the issuing of process. 

Held, the Judge^s order for the issue of process, endorsed on the petition, 
was a substantial compliance with the rule. 

Plea in bar sustained. 

■ 

Decision of Bickerton, J., Appealed From. 

Petition to revoke probate. 
The petition is as follows : 

The amended petition of Junius Kaae, one of the heirs of 
Kealiiahonui, deceased, shows unto this Court : 

1. That the said Kealiiahonui died on or about the 23d day 
of June, A. D. 1849, being at the time of his death a resident of 
Honolulu, and leaving estate within the jurisdiction of this 
Court. ' 

2. That on January 25th, A. D. 1855, the petition of one L. 
Haalelea was filed in this Court, represen^ng that Kealiiahonui 
aforesaid had died as aforesaid; that previous to his decease he 
had devised his estate to Kekauonohi by a last will and testa- 
ment ; that said Kekauonohi had since died after devising her 
estate to the said petitioner ; that the petitioner was beneficially 
interested in having said will of Kealiiahonui proved and 



94 JUNE, 1890. 

recorded, and prayed time and place for probate of said will, 
which he was ready to produce and verify as the law might 
require and the Court direct. * 

3. That thereafter, to wit, on February 16, A. D. 1855, before 
the Hon. L. Andrews and the Hon. G. M. Robertson, Associate 
Justices of this Court, appeared the said petitioner, L. Haalelea, 
and presented and filed in the Court a paper writing as and for 
the last will and testament of the said Kealiiahonui, deceased, 
for probate. 

4. That after certain proceedings had in the Court, an order 
was made and entered on said February 16, A. D. 1855, admit- 
ting said paper-writing to probate as the last will and testament 
of said deceased Kealiiahonui, and a certificate of the proof 
thereof as such endorsed thereupon, and the said L. Haalelea 
proceeded to administer the estate of the said deceased there- 
under. 

5. That said paper-writing so admitted to probate, as your 
petitioner is informed and believes, and charges upon informa- 
tion and belief, was never made by the said Kealiiahonui, de- 
ceased; was not made at his request; was never dictated by him; 
was never read to him; that he never put his mark thereto or 
his hand on that of another who wrote his name; that said 
paper- writing was not made at Puuloa; that said deceased did 
not hear anyone ask Abigail Maheha to sign the paper, and that 
deceased did not ask Kahalewai to sign the same. 

6. That said paper-writing was not signed by the said de- 
ceased, or by some person in his presence and by his express 
direction, and was not attested and subscribed in the presence 
of the deceased by two or more witnesses. 

7. That the said paper-writing, as your petitioner is informed 
and believes and charges upon information and belief, is not the 
last will and testameat of the said deceased Kealiiahonui, but 
that said paper- writing is a forged paper-writing and was falsely 
and fraudulently made and forged in Honolulu, a long time 
after the death of the said deceased. 

8. That there is after and newly discovered evidence, to wit, 
since January, A. D. 1889, that said paper-writing was not 



ESTATE OF KEALIIAHONUI. 95 

fiigned by the deceased, or by some person in his presence and 
by his express direction, and was not attested and subscribed 
in the presence of the deceased by the alleged witnesses. 

9. That said paper-writing was admitted to probate upon 
insufficient evidence and proof, and contrary to law and the 
rules of evidence. 

10. That due search and inquiry have been made to ascer- 
tain if deceased left any will and testament, but none have been 
found, and according to the best knowledge and belief of your 
petitioner the said deceased died intestate. 

11. That the estate of deceased was of great value, to wit, 
more than five hundred dollars, and consisted almost entirely of 
real estate within this Kingdom. 

12. That the deceased, Kealiiahonui, died without issue, leav- 
ing his widow Kekauonohi, who afterwards married L. Haalelea 
aforesaid, and died without issue on or about June 2, 1851. 

13. That the deceased left two half-sisters: Kinoiki, whose 
father is unknown to your petitioner, whose mother was Ka- 
puaamohu, the first wife had by Kaumualii, King of Kauai, and 
father of the deceased; and Nahinu, a daught^r of the said Kau 
mualii and Makua, his second wife. That the said Kinoiki is 
since deceased, leaving issue Her Majesty Queen Kapiolani, Her 
Royal Highness Virginia Kapooloku Poomaikelani, and Her 
Royal Highness Kekaulike, who is since deceased, leaving issue 
His Highness David Kawananakoa and His Highness Jonah 
Kuhio Kalanianaole. That Nahinu is since deceased, leaving 
lawful issue by her marriage with Oliver Chapin Kaluaipihana, 
who died without issue on or about March 30, A. D. 1867, and 
Kaeo, who died before said Kaluaipihana, without issue, leaving 
his widow, Julia Kamaemalia, who died in 1867, and Kamehao- 
kalani. 

14. That said Kamehaokalani was married to your petitioner 
in 1873 ; that she was at her said marriage nineteen years of 
age ; that they had issue three children who all died in infancy; 
that the said Kamehaokalani died on or about January 11, A. 
D. 1882, leaving heirs her husband, your petitioner, and cousins, 



96 JUNE, 1890. 

Her Majesty Queen Kapiolani, Her Highness K&pooloku and 
Her Highness Kekaulike, since deceased as aforesaid. 

15. That by her last will and testament duly probated by 
the order of this Court, issued and made December 27th, A. D. 
1882, your petitioner was appointed executor of the estate of the 
said Kamehaokalani, and letters testamentary issued to him as 
such, and he still is such •executor. 

16. That in A. D. 1855, as your petitioner is informed and 
believes, and so alleges upon information and belief, at the time 
of the probate of the said paper-writing purporting to be the 
last will and testament of the said deceased Kealiiahonui, the 
said Kamehaokalani was a minor under the age of eighteen 
years, to wit, one year of age, living on the island of Kauai ; her 
father was dead, having died in 1854 ; her mother infirm and 
on her death bed ; that no one appeared to represent her, and 
the Court did not appoint any person to represent her at the 
said probate of the said pretended will. 

Wherefore your petitioner prays that the order admitting the 
paper-writing purporting to be the last will and testament of 
the said Kealiiahonui, deceased, made on the 16th day of Feb- 
ruary, A. D. 1855, be revoked, and that the letters testamentary 
issued to the said L. Haalelea be cancelled, and that your peti- 
tioner, Junius Kaae, may be appointed administrator of the said 
estate, and that due notice be given to all 'persons interested to 
appear at such time and place as this Court may direct, and 
that the Court make a time and place and issue process sum- 
moning the said Her Majesty Queen Kapiolani, Her Royal 
Highness Virginia Kapooloku Poomaikelani, His Highness 
David Kawananakoa, and His Highness Jonah Kuhio Kalani- 
anaole to appear and show cause, if any they have, why the 
prayer of this petition should not be granted. 

And your petitioner will ever pray, etc. 



Mr. F. M. Hatch appears on behalf of Anderia A. Haalelea 
and files a Plea in Bar as follows : 



ESTATE OF KEALIIAHONUI. 97 

Plea in Bar. 

And now comes Anderia A. Haalelea and shows the court that 
she is the widow of and devisee under the will of L. Haalelea; 
that her said husband was devisee under the will of Kekau- 
onohi, who was the sole devisee of said Kealiiahonui, and that 
this respondent is interested in the estate which was devised by 
the will of said Kealiiahonui. 

And this respondent further shows that a petition was filed in 
this Court on the 2d of July, A. D. 1866 by Kapiolani (w.) 
and D. Kalakaua, her husband, Kapooloku (w.) and Kanawai, 
her husband, Kijnoiki (w.) and Piikoi, her husband, Keluaipi- 
hana (w.) and F. W. Malaihi, her husband, and Kamehaoka- 
lani, a minor, by F. W. Malaihi, her next friend, under whom 
said Kaae claims, praying for the revocation of the probate of 
the will of said Kealiiahonui upon the same grounds as are set 
forth in the petition of said Kaae, on which petition judgment 
was given dismissing the same on the 30th day of November, 
A. D. 1866. 

Wherefore the respondent prays judgment if she should be 
held to make any further answer herein, and that said petition 
may be dismissed with costs. 



Mr. J. M. Davidson appears for Her Majesty Queen Kapiolani. 

Upon an examination of the record of the case pleaded in bar, 
I find that an appeal was taken from the decision of Mr. Justice 
Robertson, but was dismissed by the Court in banco, as the 
bond was not filed in time. A writ of error was then applied 
for and issued, and after hearing, the Court says : ^' The Court 
are of opinion that this writ of error is not maintainable, and 
that plaintiff in error take nothing by his writ." 

It also appears that Kamehaokalani (at that time 16 years of 
age), through whom this petitioner claims, was a party to all 
of these proceedings and appeared by F. W. Malaihi, her next 
friend; but petitioner's counsel contends that the infant, Kame- 
haokalani, was not represented in the former case, as the record 
7 



98 JUNE, 1890. 

does not show that Malaihi appeared by leave of the Court, or 
was appointed as next friend, as required by the rule of Court, 
which reads as follows: "January Term, 1861. It is hereby 
ordered that in every suit hereafter to be instituted in this 
Court on behalf of a minor, by his prochein amij or next friend, 
it shall be incumbent on the party desirous of suing in that 
capacity to obtain the sanction of the Court, or of one of the 
Justices thereof, before the issuing of process." 

There is no question that at the time of that suit this rule was 
in force and would have to be complied .with. Yet I could not 
hold that it must be done in writing, although at the present 
time the practice is to have a Justice of the Court endorse on 
the petition the appointment of a guardian ad litem or prochein 
ami, I find endorsed on the petition an order for process to 
issue, naming the time and place of hearing, and also that pub- 
lic notice be given for three weeks in the Hawaiian Gazette to 
all parties interested; this order is signed by Mr. Justice Robert- 
son; the petition setting out the names of the parties plaintiff, in- 
cluding Kamehaokalani, by Malaihi, her next friend, was before 
the Justice at the time; and can it not be fairly said that in 
making this order the Justice gave his sanction to Malaihi ap- 
pearing as next friend of the minor Kamehaokalani. The rule 
does not require the appointment of a prochein ami, or next 
friend; it only requires the sanction of the Court, or a Justice 
thereof, for a person to sue in that capacity. It seems to me by 
allowing process to issue on that petition, the Justice gave his 
sanction, and that the minor Kamehaokalani was properly rep- 
resented in Court. The legal presumption (certainly at this 
distance of time) is that all things in a judicial proceeding 
which ought to be done were done. I find in the record of the 
former case that Mr, C. C. Harris, one of the respondents, 
referring to the minor, says : " Kamehaokalani is still a minor 
and here by next friend." 

But counsel for Mrs. Haalelea, the respondent in this case, 
contends that even the utter failure to procure the appointment 
of a next friend is only an irregularity to be taken advantage 
of by motion at the time, and does not affect the jurisdiction 



ESTATE OF KEALIIAHONUI. 99 

of the Court. The Court entertained jurisdiction in the former 
case. 

The general rule is that the omission to procure the appoint- 
ment of a guardian or prochein ami for the infant plaintiflf is no 
ground for non-suit, and can only be taken advantage of as an 
irregularity by motion. It is not indispensable in all cases 
that the proceedings show a formal order of Court admitting a 
next friend or guardian to prosecute the suit for an infant 
plaintiff; the leave of the Court may be inferred from its 
entertaining the action in its early stages. Tyler on Infancy 
and Coverture, 2 Ed., pp. 196 and 197. There are a number of 
cases cited in support of the above. 

An infant is bound by a decree in a cause where he is a plain- 
tiff, and after coming of age he is not allowed by a new bill to 
dispute anything that was done during his minority. The rule 
of law is, that an infant is as much bound by a judgment in 
his own action as a person of full age. Gregory V8, MolsBworth, 
3 Atk., 626. Chitty Equity Index, vol. 5, p. 4953. 

It is contended that in any case of improper action by a pro- 
chein ami, where the infant might obtain relief, the application 
to the Court must be made by the infant promptly on becoming 
of age, otherwise the infant's silence will amount to a confirm- 
ation. This contention I understand to be correct; persons can- 
not sleep on their rights for all time. In this case the infant, 
who was sixteen years of age at the time the former case was 
decided, lived until 1862, consequently she slept on her rights 
(if she had any) for about sixteen years, remaining silent up to 
the time of her death, and her husband, the petitioner, has 
remained silent for about eight years. In the case of Thurston 
V8. Bishopj 7 Hawn., 421, the Court held that it was the duty of 
a minor to assert his claim within a reasonable time after his 
coming to full age. 

After careful examination of this case, and of the authorities 
I consider that the petitioner is estopped from what would 
amount to a re-hearing of the original petition in the case be- 
fore Mr. Justice Robertson. Both that petition and the one in 



100 JUNE, 1890. 

this case allege the same grounds why the probate should be 
revoked, viz : That the will is a forgery. 
The plea in bar is sustained. 

Decision op the Full Court, 

We support the decision appealed from. 

The rule which required " the sanction of the Court, or of one 
of the Justices thereof, before the issuing of process," upon the 
application of one desirous of suing as a next friend of a minor, 
was substantially complied with. The Judge's order for the 
issue of process, endorsed upon the petition, was a sufficient 
" sanction" or authority for the person desirous of acting as the 
next friend of the minor to act throughout the proceedings in 
such capacity. 

Moreover, the minor in question was joined with several adult 
plaintiffs, and all were represented by counsel, and the case 
heard upon its merits. There is no claim that the case was not 
fully and adequately presented and tried. 

(7. L, Carter^ for petitioner, appellant. 

F. M, Hatch, for Mrs. Haalelea, one of the respondents. 



NAWAHINE t»«. DAYTON. 101 



S. K. MAHU and NAWAHINE (w), Administrators of the 
Estate of D. K. Mahu vs. DAVID DAYTON, Administra- 
tor of the Estate of Kainapau. 

Exceptions. 

s 

Hearing, June 17, 1890. Decision, June 25, 1890. 
judd, c. j., mccully, bickerton, dole, jj. 

An administrator was sued on a promissory note of his intestate. He 
testified for the plaintiff that the claim had been duly presented to 
him within the six months required by statute, and that after he had 
rejected the daim suit was commenced within two months from such 
rejection, 

Held, that a motion for non-suit by defendant, administrator, on the 
ground that he, the administrator, had not complied with the law re- 
quiring publication of notice to creditors, was properly denied. It 
will not lie in the administrator's mouth to say that he had neglected 
his duty. 

Opinion of the Court, by Judd, C.J. 

The plaintiffs, as administrator and administratrix of Mahn, 
deceased, sue David Dayton, administrator of Kainapau, de- 
ceased, on a promissory note of said Kainapau. 

The defendant was put on the witness stand by the plaintiffs, 
and testified that ''the claim was duly presented to him within 
the six months, and that, after he had rejected the claim, suit 
was commenced within two months from such rejection." 

At the close of the plaintiff's case the defendant moved for 
non-suit on the ground that the plaintiffs had not complied 
with the law, in that they had not shown any publication of no- 
tice to creditors by defendant. The Court overruled the mo- 
tion, to which exception was taken, and, after evidence by the 
defense, the jury found a verdict in fsivor of the plaintiff. 



102 JUNE, 1890. 

By the Court. 

We think that the non-suit was properly refused. The 
statute referred to, being the "Act to limit the time within 
which claims of creditors against the estates of deceased persons 
shall be presented and suits be commenced to enforce rejected 
claims," was enacted in order to facilitate the settlement of es- 
tates and to protect administrators. 

We regard thetestimony of Mr. Dayton, the administrator, as 
plenary evidence that he was the administrator, and that the 
claim was presented to him within six months after his publi- 
cation of notice to creditors; and if the administrator had not 
called upon creditors by advertisement, his fiduciary capacity 
being proved, it would not lie in his mouth to say that he had 
neglected his duty and had not complied with the require- 
ments of the statute requiring publication. The publication of 
the notice to creditors is not a condition precedent by plaint- 
iffs against the defendant. 

The exceptions are overruled. 

J. A, Magoon, for plaintiffs. 

A. Rosa, for defendant. 



HAWAIIAN GOVERNMENT vs. BISHOP & CO. 

Appeal from Dole, J. 
Hearing, June 18, 1890. Decision, June 23, 1890. 

JUDD, C.J., McCULLY. BiCKERTON, DoLE, JJ. 

A bill by a Tax AaeeBBOT for disoovery apon a Bank to diBclose the names 
and amounte of its depositors, held demurrable. 

The ordinary depositiS in a bank become the property of the bank, and the 
bank becomes the debtor of the depositor therefor. The bank, there- 
fore, and not the depositor, is liable for taxes on the deposits that 
were in the bank on the Ist July. 

Decision of Dole, J., Appealed From. 

The bill recites substantially that C. A. Brown is the assessor 
for the first taxation division, which corresponds with the Isl- 



HAWAIIAN GOVERNMENT V8. BISHOP. 103 

aftd of Oahr^, and that the defendants, as bankers, made in July 
last an incomplete, defective and insufficient return of property 
held in custody by them in the said taxation division. 

The bill further recites that it is necessary for the proper per- 
formance of the duties of the said assessor and the due and proper 
assessment of property for taxation in said taxation divison, and 
more especially the property of defendants within the same, 
that the defendants shall furnish and disclose to the plaintiff a 
fiill, true and particular statement of the deposits in their bank, 
and the names of the depositors and the amounts of the several 
deposits standing to the credit of the depositors respectively on the 
first day of July last ; and that such information was requested of 
the defendants and refused by them, and can be obtained by 
the plaintiff only through relief and discovery in a court of 
equity. 

The bill prays that defendants may answer the interrogatories 
attached, which correspond with the recitals of the bill. 

The defendants demurred to the bill. 

The plaintiff claims to be entitled to the discovery prayed for, 
for the sake of enabling the assessor to properly perform his 
general duties, to wit, the assessment of property on the Island 
of Oahu, and especially to properly assess the property of de- 
fendant. The defendants contend that the statute gives the, 
plaintiff no right to a discovery, and that the allegations of the 
bill do not show any equitable right. 

The statute calls upon every person to state in his return 
moneys belonging to him deposited with a bank. If on an ap- 
peal from an assessment, the question should arise as to the 
taxpayer's existing deposit in a bank, on the first day of July, 
the Government, if entitled to know, which is doubtful, would 
undoubtedly have the right to subpoena the banker to testify 
in this point. But to say that on general grounds, and to fa- 
cilitate the work of an assessor, the Government is entitled to 
the private information of a banker in regard to the confidential 
relations between him and his clients, or customers, and this 
when there are no pending proceedings requiring such informa- 
tion, is probably going too far. 



104 JUNE, 1890. . 

As to the right of the plaintiff to have the discovery praytd 
for, for the proper assessment of the defendants' property, I 
doubt whether any such right exists, certainly it is not conferred 
by the statute ; but I feel that I need not go exhaustively into 
this question, because I am satisfied that if the information de- 
sired was obtained by the plaintiff, it could not facilitate the as- 
sessment of the defendants' property, for these reasons : When 
ordinary deposits are made in a bank of deposit, the property ia 
the money passes to the bank, which becomes the debtor of the 
depositor. Downea vs. Phcsnix Banky 6 Hill, 297, and Commercial 
Bank vs, Hughes, 17 Wend., 94. Newmark's Bank Deposits, § 
10. The banker is therefore liable for the taxes upon all that 
part of such deposits which is in his possession or control on the 
first day of July, but as he may have loaned or otherwise in- 
vested a portion of such deposits before the first day of July, any 
statement of his account with his depositors as of the first day 
of July would be without significance as to the extent of his per- 
sonal property upon that day liable to a property tax, and could 
not facilitate the assessment of^ the defendants' property ; neither 
could such statement, upon the same principle of law, aid in 
the general assessment of property in the taxation division men- 
tioned.. 

The demurrer will therefore be allowed and an order signed 
to that effect. 

Decision of the Pull Court, by Judd, C.J. 

We have carefully considered the arguments presented in this 
case, and are of opinion that the decision of Mr. Justice Dole, 
appealed from, rendered on the 9th October, 1889, should be sus- 
tained ; and we hereby adopt the same and affirm the decree 
therein made. 



MINISTER OF FINANCE vs. CASTLE. 106 



MINISTER OF FINANCE vb. W. R. CASTLE. 

Submission on Agreed Facts. 

Hearing, June 18, 1890. Decision, October 21, 1890, 

judd, c.j., mccully, bickerton, dole, j j . 

The fixed rent in a lease was $5,000 per annum. The lease contained also 
an agreement that four per cent, of the produce of the demised prem- 
ises might be paid in lien of rent; bat in no case should the percent- 
age amount to lees than 95,000 per annum. There was also an execu- 
tory agreement in the same instrument for the sale of wood growing 
on the land for 95,000 of paid-up stock in the plantation. 

Held, that the instrument required seven dollars stamp duty; five dollars 
on lease, one dollar on agreement and one dollar on the executory 
agreement. 

Opinion of the Court, by Bickerton, J. 

The question raised by the papers in this matter is the 
amount of stamp duty required upon a certain lease made by 
Benjamin F. Dillingham to W. R. Castle, dated 10th day of 
December, 1889, of certain premises in the District of Ewa, Isl- 
and of Oahu, W. R. Castle claiming that the amount of stamp 
duty required upon such lease is only five dollars, which stamp 
has been placed on the said lease, the lease setting forth that in 
no case shall the rent be less than five thousand dollars per an- 
num, which is the only fixed rent named therein; whereas the 
Minister of Finance claims that the amount to be paid, as by 
said lease required, is four per cent upon the sugar produced 
upon the lands demised, and he, believing that the amount of 
such rent will not fall below twenty-five thousand dollars per 
annum, fixes the stamp duty at twenty-five dollars. 

By the Court. 

Sec. 6 of the Stamp Duties Act of 1876 reads: "Every in- 
strument containing distinct matters, or made for more than 



106 JUNE, 1890. 

one consideration, shall be stamped on each matter or consider- 
ation." 

On examination of the lease in question, we find that it con- 
tains three distinct matters: 

First. A fixed rent of five thousand dollars per annum. 

Second. An agreement that in lieu of rent for the demised 
premises the lessor shall be paid one twenty-fifth of all proceeds of 
all sugars or other produce raised on said lands after deducting 
certain specified expenses and charges, but for the years 1890 
and 1891 the amount of $5,000 each year shall be paid as rental 
in place of such percentage, and, further, that if in any year 
the amount of percentage should not amount to $5,000, then 
the sum of $5,000 shall be paid as rent, without regard to per- 
centage. 

Third. An executory agreement for the sale of all the wood 
now growing upon the land of Waimanalo to the lessee, for 
$5,000, paid in paid-up stock of the sugar plantation to be es- 
tablished for the cultivation of the demised premises. 

As to the first matter there is no dispute, and the five-dollar 
duty stamp ib affixed to the lease. The statute requires one 
dollar stamp for every $1,000 (or fraction thereof) rent per 
annum; in this case the fixed rent being $5,000 per annum, the 
stamp duty is five dollars. 

As to the second matter, to try and fix the stamp duty on 
such an agreement for rent would only be working in the dark 
and guess work — there is nothing certain; all would have to 
depend on the state of the market, state of the crops, state of 
the weather and many other contingencies, which it is impos- 
sible for human ability to ascertain with any certainty. 
We do not consider that the statute contemplates the charging 
of stamp duty in such cases, where there is a fixed rental 
named in the same lease, as in this case. But this is a dis- 
tinct agreement, and under the statute requires stamp duty of 
one dollar. 

As to the third matter, it being an executory agreement for 
the sale of the wood, the stamp duty required is one dollar. 



MINISTER OP FINANCE vs. CASTLE. 107 

We therefore find that the amount of stamp duty actually re- 
quired under the law upon the lease 'in question is seven dol- 
lars. 

Partially Dissenting Opinion of Dole, J. 

There is no authority in the statute for basing a charge of 
stamp duty on a lease in such a case, where rent is made a per- 
centage of the profits, upon an estimate of prospective profits. 
Moreover, such an estimate would be' merely speculative and 
often unjust to the taxpayer. I agree, therefore, with the opin- 
ion of the Court that the lease must be charged with a stamp 
duty of five dollars on account of the minimum annual rent re- 
served, of $6,000. 

I also agree with the opinion of the Court that one dollar 
stamp duty must be charged for the executory agreement which 
the lease contains for the sale of wood. 

I disagree, however, with that part of the Court's opinion 
which decides that the agreement that . four per cent, of the 
lessee's profits shall be paid as rent, when such four per cent, 
amounts to more than $5,000, is a distinct agreement, and must 
be taxed one dollar as such. The lease provides that the rent 
shall be fixed by a percentage on the profits, except when such 
percentage realizes less than $5,000 a year, in which contin- 
gency the rent shall be $5,000 for such year. A covenant for 
rent is a necessary part of every lease where the whole rent is 
not paid in advance, and cannot be regarded as a distinct agree- 
ment from the lease and taxed as such. In this case the cir- 
cumstance that the agreement for rent is amplified somewhat 
beyond the ordinary simple form does not make a distinct 
agireement of it. This agreement for rent is one agreement, it 
cannot be cut in two; it is an agreement, in the alternative, 
that the rent shall be paid by a percentage, except upon the 
happening of a certain contingency, when it shall be paid by a 
fixed sum. Under this reasoning, therefore, the lease is liable 
to a stamp duty of only six dollars. 

Deputy Attorney-Oeneral Creigkton^ for plaintiff. 
W. R, CastUy in person. 



108 JUNE, 1890. 



WAILUKU SUGAR CO. vs, WILLIAM DEAN. 

Appeal from Biceerton^ J. 

Hearing, June 18, 1890. Decision, June 27, 1890. 

JuDD, C. J., McCuLLY, Bickbrton, Dole, JJ. 

The Act to provide for the sale of mortgaged property without snit and 
decree of sale, Gomp. Laws, p. 563, does not require that the acts to be 
done by the mortgagee in order to sell the mortgaged property shall 
be done by him personally. They may be done on his behalf. 

Opinion op the Court, by McCully, J. 

Referring to the opinion of Mr. Justice Bickerton for the 
statement of the case, in adopting, as we do, his reasoning and 
conclusion, we may further observe that we do not read the 
statute as expressly requiring that certain acts be done by the 
mortgagee personally or any assign personally, and implying 
that the things done shall be invalid if done for him or on his 
behalf by another person. In this respect the fore part of 
section one, prescribing that notice of intention to foreclose shall 
be given by publication and further advertisement of the sale, 
stands upon the same footing as the latter part which requires 
that " he," that is, the mortgagee or the person having estate 
therein, shall within thirty days after selling the property in 
pursuance of a power file a copy of the notice of sale and his 
afiidavit setting forth his acts in the premises fully and particu- 
larly, etc. Now it has not been contended in this case, and no 
reasonable contention could be made, that the mortgagee could 
not employ an attorney at law, an attorney in fact or a 
mere business agent to do for him the preliminary acts required. 
Such other construction would debar an absent mortgagee, for 
instance, from this proceeding in foreclosure. But if this may 
be done by such an agent, who but he is qualified to make the 
affidavit setting forth his acts? So that the reasonable construe- 



WAILUKU SUGAR CO. V8. DEAN. 109 

tion of the statute would be that these certain proceedings be had, 
for the protection of the mortgagor. When it appears in a con- 
tention that they were done by a person properly acting for the 
mortgagee, and one cannot suppose that an unauthorized 
stranger could assume to act, which would be simply fraudulent, 
the provisions of the statute are satisfied. The common maxim, 
Qaifacit per aliumfacit per se, seems to be applicable here. 

It is the ordinary phraseology of an Act requiring a person to 
do something, which is of a character to be done by another 
person in his behalf. 

Story's Equity Jurisprudence, Sec 1027a, prescribes that such 
powers of sale are construed liberally for the purpose of effect- 
ing their general object. The objects of the statute in this case 
were effected, and it would be an illiberal construction to hold 
that the acts of this business could only be validly done by the 
mortgagees in person. 

In Field vs. Oooding, 106 Mass., 310, the Court say, in a con- 
tention that if the statute provision to file the afBidavit within 
thirty days is not complied with the sale becomes void; that the 
title passes by the sale and deed and immediately vests in the 
purchase; that it was not the intention to make it subject to a 
condition subsequent and liable to be defeated by a failure of the 
mortgagee to perform an act which must follow the conveyance 
in point of time; that it must be regarded as directory and not 
precluding a resort to other evidence that the power of sale was 
duly executed; that the mortgagor cannot complain if the con- 
ditions he has chosen to insert in the deed have been in fact 
complied with. Childs vs. Dolan, 5 Allen, 319; Cranston vs. 
Crane, 97 Mass., 459; HamUt<m vs. Lubukee, 61 111., 415. 

The decree appealed from is confirmed. 



Opinion of Bickerton, J., Appealed From. 

The bill which was filed April 15th, 1890, avers that Eualaau, 
Naholowaa and J. Kiakahi Pae were seized in fee simple of a 
certain piece or parcel of real estate situated at Wailuku, Island 
of Maui^ and describes the same by metes and bounds. That 



no JUNE, 1890. 

on or about the 29th of December, 1884, the said Kualaau, Na- 
holowaa and J. K. Pae mortgaged said property to defendant to 
secure the payment of a certain promissory note of even date 
for $500, with interest at twelve per cent, per annum. That the 
said Kualaau, Naholowaa, and J. K. Pae did by good and valid 
deeds and for valuable consideration assign and quit claim unto 
the petitioner the said premises, and that said conveyances were 
within the knowledge of the defendant, whereby the petitioner 
became entitled to the equity of redemption of the said mortg- 
aged premises. That said note and mortgage being overdue, the 
petitioner has frequently applied to and requested the said 
defendant to release the same. That on the 14th day of April , 
1890, the petitioner did tender the sum of $757.50, the full 
amount then due the said defendant, and demanded that said 
note and morgage be cancelled; that defendant refused to accept 
said amount or to cancel said note and mortgage. And the 
petitioner prays : 

First. That an account may be taken of what, if anything, 
is due the defendant for principal and interest on the said note 
and mortgage. 

Second. That your petitioner may be permitted to redeem 
the said mortgaged premises, your petitioner being ready and 
willing and hereby offering to pay what, if anything, shall ap- 
pear to remain due in respect to the principal and interest on 
said note and mortgage. 

Third. That said defendant may be decreed to cancel and 
release the said note, mortgage and premises, and make, execute 
and deliver to netitioner a lawful cancellation and release 
thereof, ready to go of record, and may deliver over to your 
petitioner all deeds and writings in his custody or power relat- 
ing to the said mortgaged premises. 

Fourth, That your petitioner may have such further and 
other relief in the premises as the nature of the case shall 
require, and to the Court shall seem meet, with hi& costs. 

The answer admits all the averments excepting that Kualaau, 
Naholowaa and J. K. Pae assigned and quit claimed unto the 
petitioner the said premises, and says that defendant has no in- 



WAILUKU SUGAR CO. vb, DEAN. Ill 

foriBiation sufficient to form a belief as to the matter. And for 
further and separate defense to the matters and things set forth 
in the complaint says, that on account of non-payment of 
interest due upon the mortgage referred to in the petition he 
caused the said mortgage to be foreclosed b^ sale at public auction 
as prescribed by law; that said sale took place during the month 
of September, 1889, at which sale the petitioner became the 
purchaser for the sum of $800; that an affidavit for foreclosure 
was filed and a deed upon such foreclosure was prepared by said 
petitioner, and that no part of said sum of $800 has yet been 
paid to said defendant. And further shows that all the papers 
and instruments relative to said mortgage and of said fore- 
closure are now in the hands of the petitioner, and prays that 
the same may be produced upon the hearing. 

The petitioner filed a formal replication. 

The petitioner claims that the requirements of the statute 
have not been complied with in regard to the notice of fore- 
closure and sale. And further that the affidavit of sale should 
have been made by the mortgagee, and not by William R. Castle 
as attorney for mortgagee, and therefore that the foreclosure 
sale is void, and that he is entitled to the equity of redemption 
under his deeds from Kualaau, Naholowaa and J. K. Pae, which 
are dated subsequently to date of mortgage sale, one being dated 
25th November, 1889, and one 11th of April, 1890. 

The powers of sale contained in the mortgage, read : " But if 
default shall be made * * * said mortgagee, his heirs, 
executors, administrators and assigns are hereby fully author- 
ized and empowered to sell said premises, 6t any part thereof, at 
public auction on three weeks' advertisement, as provided by law 
(Act 1874.)" 

The notice of foreclosure reads as follows : 

." Mortgagee's notice of foreclosure. 

'^ In accordance with the provisions of a certain mortgage 
made by Kualaau, k, of Wailuku, Maui, and Naholowaa, w, 
and J. K. Pae, her husband, of Honolulu, Oahu, to Wm. Dean 
of Honolulu, Oahu, dated December 29th, 1884, recorded in 
Liber 92, pages 377 and 378, notice is hereby given that the 



112 JUNE, 1890. 

mortgagee intends to foreclose the same for condition broken, 
to wit, non-payment of interest. 

*' Notice is likewise given that after the expiration of three 
weeks from the date of this notice, the propert}^ conveyed by 
said mortgage will be advertised for sale at public auction, at 
the auction rooms of Jas. P. Morgan in Honolulu, on Monday, 
the 9th day of September, 1889, at 12 o'clock noon of said day. 

" Further particulars can be had of W. R. Castle. 

" Dated Honolulu, August 13, 1889. 

Wm. Dean, Mortgagee. 

'' The premises covered by said mortgage consist of : All that 
certain tract or parcel of land situate in Wailuku, Maui, more 
particularly described in R. P. 6066, L. C. A. 2458 to Kawai- 
ohia, containing an area of 8 26-100 acres, which said mortgagors 
own in fee simple." 

The statute reads : " When a power of sale is contained in a 
mortgage, the mortgagee, or any person having his estate there- 
in, or authorized by such power to act in the premises, may, 
upon a breach of the condition, give notice of his intention to 
foreclose such mortgage, by publication of such notice in the 
Hawaiian and English languages for a period of three consecu- 
tive weeks, before advertising the mortgaged property for sale; 
and also give such notices and do all such acts as are authorized 
or required by the power contained in the mortgage ; and he 
shall within thirty days after selling the property in pursuance 
of the power, file a copy of the notice of sale, and his affidavit 
setting forth his acts in the premises fully and particularly, in 
the office of the Registrar of Conveyances in Honolulu. The 
affidavit and copy of the notice shall be recorded by the regis- 
trar with a notice of reference thereto in the margin of the 
record of the mortgage deed, if recorded in his office." 

As to the notice of intention to foreclose, it appears that the 
notice was published in the Hawaiian and English languages 
for three consecutive weeks, the first publication being on the 
18th of August, 1889, and the last on the 3d of September, 1889, 
and after being further advertised by i)osters, the land was sold 
at public auction on the 9th day of September, 1889. The fact 



WAILUKU SUGAR CO. rs. DEAN. 113 

that the mortgagee iu the same advertisement also gave notice 
that after the expiration of three weeks the mortgaged property 
would be advertised for sale at public auction on the 9th day of 
September, 1889, cannot in any way affect the notice of inten- 
tion to foreclose. The statute fixes three consecutive weeks as 
the time for advertising notice of intention to foreclose, but is 
silent as to the number of times notice of sale shall be publish- 
ed. Under this state of facts, I find that the mortgagee has 
complied with the statute in regard to the required publications. 

The next question is in regard^ to the affidavit of foreclosure 
and sale. The object of filing this affidavit can only be that it 
may appear of record that the requirements of the statute have 
been complied with. The statute does read "he (the mort- 
gagee) shall within thirty days * * * file a copy * * 
* and his affidavit setting forth his acts * * *." There is 
a similar provision made for the filing of answers in civil 
actions. Section 1106 of the Compiled Laws reads : "It shall 
be incumbent upon every defendant served with process of 
summons as hereinbefore provided, within the time * * ♦ 
to file with the clerk of the Court an answer to the plaintiff's 
demand * * *." 

An answer is rarely, if ever, filed by the party defendant, but 
is filed by his or her attorney, and is held to be sufficient, if it 
is done for and on behalf of the party defendant. 

In this case the affidavit is made by William R. Castle, who 
deposes and says, " he is attorney for the mortgagee; that on 
behalf of the mortgagee * * * he did foreclose * * * 
did advertise notice of intention to foreclose and of sale as re- 
quired by law * * *." The affidavit sets forth his acts in 
the premises fully and particularly. It also appears that the 
affidavit was filed in the Registrar's office on the 10th day of 
September, 1889, the day after the sale, and was therefore within 
the thirty days required by law. 

I am of opinion that the affidavit of William R. Castle, 
attorney for the mortgagee, is sufficient, and that the require- 
ment of the statute has been complied with. If there was or is 
any doubt as to the authority of Mr. Castle, it is entirely 
.8 



114 JUNE, 1890. 

removed by the affidavit of William Dean, the mortgagee, filed 
in this case, recorded in Registrar's office 6th January, 1890, as 
follows : 

''In the matter of the foreclosure, Kualaau to Wm. Dean 

Oahu : ss. William Dean, being duly sworn, deposes and 
says : That he is the mortgagee named in a certain mortgage 
made by Kualaau and others to him, dated 29th day of Decem- 
ber, 1884, recorded Liber 92, page 877, and that said mortgage 
was foreclosed for default in payment of interest ; that William 
R. Castle acted as his attorney in the matter and attended to 
all of the business in connection with said foreclosure ; that he 
is the attorney for all of the mortgages and investments of said 
William Dean, made by him, the said William Dean, and 
attends to collections of interest and foreclosures for non-pay- 
ments ; and that he verily believes that in all respects said 
mortgage was duly foreclosed in accordance with the law as set 
forth in the affidavit of foreclosure, duly filed and recorded in 

Liber , page . And further, deponent saith not. 

William Dean. 

Subscribed and sworn to before me this 2d day of January, 
1890. 

[Seal] Nellie M. Lowrey, Notary Public." 

The mortgagee's deed prepared by petitioner does not con- 
form to the affidavit of foreclosure, but that can be rectified, as 
the sale has not been completed. 

The plaintiff not only has all the title of the mortgagees, but 
has quit claim deeds from the mortgagors. 

The bill is dismissed with costs. 

C L, Carter^ for petitioner. 

W, R. Castle, for defendant. 



THE KING vs. WANSEY. 115 



THE KING V8, A. WANSEY. 

Exceptions. 

Hearing, June 18, 1890. Decision, August 22, 1890. 

judd, c.j., mccully,- bickerton, dole, jj. 

The defendant was charged with malicious injury in wounding a dog, the 
property of another, while trying to drive him from his premises, where 
the dog was trespassing and conmiitting depredations. 

Held, that the defendant was not acting without justification or excuse, 
and that the charge was not sustained. 

Opinion of the Court, by Dole, J. Judd, C.J., DrssENTiNG. 

The question in this case is whether or not the acts of the de- 
fendant complained of constituted malicious injury. 

The essential facts are stated by the Chief Justice sitting in 
Chambers, in the decision appealed from, as follows : 

" On the 24th February last, the attention of the defendant 
was called to a dog which was running away with a piece of 
meat in his mouth from the kitchen on the premises where de- 
fendant was living, on School street in Honolulu. Defendant 
ran to where the dog was and threw a stone at it, which hit it, 
then opened a gate near by, but the dog not making his escape, 
defendant threw another stone which also hit the dog. The 
dog was then taken away by a native woman, who was attracted 
to the spot by its cries. The dog is a Gordon Setter pup, about 
five months old, of good breeding, and worth from $25 to $50, 
the property of one George Cavanagh. The injuries to the dog, 
occasioned by the stones thrown by defendant, were the break- 
ing of one of its fore legs in two places, and the knocking out, 
breaking and displacing some of its teeth, mainly the milk 
teeth, which are supplanted in the course of nature by perma- 
nent teeth." 

" Defendant did not know who the dog's owner was." 



116 JUNE, 1890. 

" The defendant is charged under Chapter 23 of the Penal 
Code with a maliciouB injury and mischief, by which is made 
punishable *any injury or offense maliciously done or caused by 
anyone to the property, right or liberty of another, whereby 
another may or might be subject to loss, damage or prejudice^ 
or disturbance in any of his rights, liberties or privileges of per- 
son or property.' " 

The Chief Justice fcJund the defendant guilty of malicious in- 
jury, confirming the judgment of the Police Court where the 
cause was first tried. 

The defendant excepted upon the fallowing grounds : 

1st. No offense had been proven. 2nd. That no malice had 
been shown. 3rd. That it was necessary for the prosecution to 
prove, beyond reasonable doubt, that defendant had malice 
toward the owner of the property injured. 4th. That under 
Section 9 of Chapter XXIII. of the Penal Code, defendant had a 
right to attack the dog under the circumstances shown. 

Upon the third point by defendant's counsel, we agree with 
the conclusion of the decision appealed from, to the effect that 
it is not necessary to show special malice against the owner of 
the property, but that it is sufBicient if there is no adequate 
legal justification and ^'a reckless disregard for the property of 
another," who is not necessarily known to the defendant. 

It is not clear to us that the circumstances bring the cause 
within the section of the law referred to by defendant's fourth 
ground of exception. 

The defendant's first and second grounds of exception, how- 
ever, raise the question of malice which is necessary to the 
offense of malicious injury. Our statutes have not greatly 
modified the common law relating to this offense. While 
malice toward the animal injured does not constitute malicious 
injury, yet by the common law it was sufficient if an animal 
was injured in a spirit of wanton cruelty (4 Bl. Comm., 244) ; 
and by our Jaw the killing, mutilating, maiming or wounding 
an animal without adequate legal justification, and with a 
reckless disregard for the property of another, constitutes the 
offense. 



THE KING vs. WANSEY. 117 

Upon the qaeetion of adequate legal justification under the 
facts shown, we are compelled to differ from the decision ap- 
pealed from. The dog was a trespasser, not only upon the 
grounds, but in the dwelling house of the defendant, and he was 
in the act of carrying off a piece of beef from the kitchen at the 
time the defendant attacked him, although he saw only that the 
dog was carrying away something in his mouth, but didn't 
know what it was. These circumstances afforded an adequate 
legal justification for the defendant's attack upon the dog which 
resulted in the injuries shown in the evidence, adequate to the 
extent of accounting for the attack without any necessity of ex- 
plaining it upon the theory of malice, or a reckless disregard for 
the property of another. 

Our opinion as to the absence of malice in the defendant is 
somewhat strengthened by the application of the 4th section of 
our statute of malicious injuries to the circumstances. This 
section reads, " An act done in the fair exercise, assertion, main- 
tenance or vindication in good faith of a supposed legal right, 
while there is any real or apparent ground for supposing such 
right to exist, and the same is not used as a mere cloak, pre- 
tence or occasion for a malicious injury, shall not be punishable 
as a malicious injury." Does not this describe, almost literally, 
the status of the defendant at the moment the attack upon the 
dog was made ? 

These views are in accord with decisions elsewhere, so far as 
we have been able to consult the reports of causes. 

" In a North Carolina case for stabbing a mare belonging to 
another, the jury found that the * defendant took the mare from 
his cornfield where she was damaging his growing corn, to a se- 
cret part of the county, where he inflicted the wound with the 
view to prevent a repetition of the injury.' And the Court held 
that this finding would not sustain a conviction. Said the 
Judge (Tailor, C. J.): ' We do not think the facts found in this 
case bring the offense within the common law notion of malici- 
ous mischief. That seems to be confined to those cases where 
the act is done in a spirit of wanton malignity without provo- 
cation or excuse, and under circumstances which bespeak a 



118 JUNE, 1890. 

mind prompt and disposed to the commission of naischief.'" 
State V8, Landreth, 2 Car. L. Repos., 446, and 2 Bishop's Criminal 
Law, §964. And in Wright ve. State, 30 Ga., 325, the Court say: 
'^If an animal is in the habit of trespassing on a man's fields and 
destroying his crops, and during an act of trespass he shoots the 
animal, not out of any malice, but to preserve his crops, though 
he may not be justified civilly, he is criminally. The motive is 
not what the law deems malicious." Bishop, Stat. Crimes, § 437. 

The exceptions are allowed upon the first and second grounds, 
and the defendant discharged. 

Deputy Attorney- General, C. Creighton, for the Crown. 

W. A. Whiting, for defendant. 



I respectfully dissent. A. F. Judd. 



G. W. MACPARLANE & CO. vs. J. S. McCANDLESS. 

Appeal from Order op Judd, C.J. 

Hearing, June 18, 1890. Decision, September 4, 1890. 

Judd, C.J., McCully, Bickerton, Dole, J J. 

A motion was made to open default. Motion overruled and judgment af- 
firmed, after hearing on motion and argument. 

Held, that it is a matter of discretion with the Court, and that the hear- 
ing on the motion was not an opening of the default. 

Opinion of the Court, by Bickerton, J. 

Judgment was obtained by the plaintifis in this case on the 
2l8t of November last, defendant not answering, and default 
having been granted by the Court. At the close of the Janu- 
ary term a motion was made to set aside default, defendant 
claiming that service was defective, in that no copy of the pe- 
tition and summons was left with him by the officer. After 
hearing, the Chief Justice affirmed the judgment, and the mat- 
ter now comes here on appeal from that decision. 



. MACFARLANE V8, McCANDLESS. 119 

By the Court. 

The question of discretion of the Court has been passed upon 
by this Court. "An order opening a default is a matter of dis- 
cretion and not reviewable, except in a -clear case of abuse." 
Bishop vs. Pacific Navigation Co,, 7 Hawn., 276. "Whether a 
Justice will re-open a case for a new hearing after his final de- 
cree made and not appealed from is a matter of judicial discre- 
tion from which appeal does not lie." Makalei vs. Himeni, 7 
Hawn., 168. The statute makes these matters matters in the 
discretion of the Court. "The Judge or Court shall have power, 
however, to open the default in their discretion for good and 
suflScient reasons." Section 1126, Comp. Laws. But the de- 
fendant claims that the Chief Justice opened the default by in- 
vestigating and examining the case as to the service and the 
nature of the defense defendant could have availed himself of if 
he had answered. We do not think this was opening the de- 
fault, it was only doing what was necessary to be done to en- 
able the Court to see if any injustice was being done the defend- 
ant, or if there was any good and sufficient reason why it 
should exercise its discretion and open the default. The Chief 
Justice, in his opinion, says: "Having examined this matter 
fully, I am of opinion that the service was made in all respects 
as required by law." And, further on, he finds that the de- 
fense proposed to be set up, which was in the nature of a set- 
off, "is an independent matter and ought to be the subject of an 
independent suit." Consequently the defendant is not de- 
prived of his right to recover on any claim he might have 
against the plaintiff. The Chief Justice, therefore, found that 
there was no good and sufficient reason for opening the default, 
and exercised his discretion in the matter and affirmed the 
judgment obtained on the default. 

The appeal is dismissed, and the judgment of the lower Court 
affirmed. 

Concurring Opinion of Dole, J. 

I have found some difficulty in coming to a conclusion in 
this cause from the circumstance that the grounds upon which 



I 



120 JUNE, 1890. 

the Chief Justice bases his refusal to open the default appear 
to me to be erroneous. He says: "I was willing to open the 
default so far as to see if the defendant had a defense which he 
could have availed himself of if he had answered, and to allow 
it if of that character. I find that the plain tifTs claim is for 
goods sold and delivered — certain iron piping. The defendant's 
counterclaim or set-oflf is for the use of a certain artesian well- 
boring rig. I think under our decisions this is not a matter of 
set-off, and would not be received as such if the defendant had 
answered. The off-set must be of the Fame kind and denomina- 
tion and 'existing in the same right,' to which I can give no 
other meaning than that the off-set must arise in some way 
from the original transaction between the parties. The upe of 
the well-l)oring apparatus is an independent matter, and ought 
to-be the subject of an independent suit." 

This conclui^ion of law is, I think, a mistake. "A set-off is a 
counter-demand which the defendant holds against the plaint- 
iff, arising out of a transaction extrinsic to the plaintiff's cause 
of action. The right of set-off is very different from a mere 
right to reduce or defeat the plaintiff's demand on account of 
some matter connected therewith." Waterman on Set-off, Sec- 
tions 2 and 3, and Avery V8, Brown, 31 Conn., 398. 

Now, if the refusal to re-open the default was based upon a 
wrong conclusion of law, would that fact affect such refusal? 
By our statute the opening of a default is a matter of discretion 
with the Court. Generally rulings in matters of discretion are 
not appealable. Bolles vs. Padeken, 3 Hawn., 664. 

In the cause of Polhemua vs, Ann Arbor Bank, (27 Mich., 44), 
which was an appeal upon a writ of error, a similar question 
was in issue. The lower court refused to allow an amendment 
to the pleadings upon the ground that it had no power to allow 
it, which was a mistake in law, for the granting of an amend- 
ment was a matter of discretion with the Court. The appellate 
court went somewhat exhaustively into the question whether 
"the ground on which the (lower) court placed the denial of 
the motion (could) be so separated from the denial itself as to 
present a case entitled to review on writ of error when other- 



MACFARLANE vs, McCANDLESS. 121 

wise none would exist," and decided that it could not. They 
8aj> "the true subject of complaint by the plaintiff in error on 
this record is the final result of his motion, and not the peculiar 
view of the Court which Jed to it." And again, "The objection 
then must be considered as founded on the refusal of the mo- 
tion, and not on the motive which led to that refusal." The 
reasoning of the decision applies as well to ordinary appeals in 
our courts as to writs of error in Michigan. This conclusion is 
supported by the cause of United States vs. Buford, 3 Peters, 30, 
in which the Court say: "This Court has repeatedly decided 
that the exercise of the discretion of the Court below, in refus- 
ing or granting amendments of pleadings or motions for new 
trials, affords no ground for a writ of error. In overruling the 
motion for leave to withdraw the replication and file a new one, 
the Court exercised its discretion, and the reason assigned 
(which the plaintiff claimed to be erroneous) as influencing 
that discretion, cannot affect the decision." 

Following these authorities I am led to the conclusion that 
the refusal of the Court below to open the default, being within 
the discretion of the Court, is not affected by the reasons which 
led to the decision, and is not a matter of review by this Court. 
I therefore concur with the decision of the Court, that the ap- 
peal be dismissed. 

C. L, Carter and P. Neumanny for plaintiff. 

V. V, Ashfordj for defendant. 



122 JUNE, 1890. 



WIDENING OF ALAKEA STREET, HONOLULU. 

Exceptions. 

Hearing, June 25, 1890. Decision, August 20, 1890. 

JUDD, C. J., McCULLY, BiCKERTON, DoLE, JJ. 

• AsBessments for the betterment of estates trill be limited to estates abut- 
ting on the highway or street which has been opened or widened. 

Opinion of the Court, by McCully, J. 

The point for decision in this matter as it was presented on 
appeal is solely whether estates or lots not abutting on the 
street which has been widened shall be assessed for the better- 
ment. 

The authorities are agreed that such terms as ^^ especially 
benefited" must be construed to mean something different from 
the general l^enefit to the city at large, and from the locality 
near the street which has been improved by widening. 

Chief Justice Gray, in Upham vs. Worcester, 113 Mass., 97j 
says : ** The benefits which may accrue to any estate from the 
laying out of a highway are of three kinds : Ist. Those directly 
occasioned to an estate bounding upon the highway, and peculiar 
to the estate itself as distinguished from other estates not bound- 
ing thereon. 2nd. Those shared by the estate in common with 
other estates in the neighborhood. 3rd. Those which extend to 
all estates in the same town or city. Benefits of the first kind 
only can be allowed by way of set-off against the damages 
awarded to the owner under the Highway Act for taking part 
of the estate and injuring it." 

To a similar effect are Parkes vs. Hampden, 120 Mass., 396; 
Allen vs. Charlestown, 100 Mass., 246; and Cross vs, Plymonthy 
125 xMass., 558. 



WIDENING OP ALAKEA STREET. 123 

This rule is founded on good reason, and any other line of 
distinguishing estates which are assessable for benefits from 
those which are beyond the influence of the improvement would 
be difficult to establish, and arbitrary and unsatisfactory in its 
working. 

We adopt the reasoning and decision of the Chief Justice, 
which follows below. 

W, A. Whiting, for the Government. 

W. Foster, for appellants. 

Concurring Opinion of Dole, J. 

I support the conclusion of the foregoing opinion, upon the 
sole ground that our statute only authorizes the charging of 
costs for the widening of streets against the lands which have 
been damaged by such widening. The wording of the statute 
is somewhat loose and vague in places, but reading the whole of 
it and interpreting the doubtful parts by the context, one is led 
clearly to the conclusion that other lands than those which have 
been injured and are awarded damages were not under consid- 
eration by the Legislature when the statute was enacted. 

As the land affected by the proceedings before the Court is 
not within the class of lands referred to in the statute, the 
assessment of costs against it must be cancelled. 



Decision of Judd, C.J., Appealed From. 

Several important questions are brought up by these appeals. 

First. Have the Commissioners appointed under the statute 
to assess the damages to property taken for street opening or 
improvement, and benefits for such improvements, the authority 
to assess benefits upon land situated not upon the street widened, 
but in the neighborhood? 

Second. Are the particular estates whose assessments are ap- 
pealed from within the authority of the Commission? 

Third. Do the damages or cost, a percentage of which is to be 
recouped by these assessments, include the damages paid to 



124 JUNE, 1890. 

owners of lands which have been taken by the State for street 
improvement? 

Section 1 of the Act of 1870 prescribes that the Commission 
shall determine what estates are especially benefited by such 
road or highway, and the amount of especial benefit to each. 

The appellants' lots are situated, Mr. Allen's on King street 
between Alakea and Richard; one lot of Mrs. Bishop's estate is 
on King street between Alakea and Fort, and the other on 
Queen street between Alakea and Richards, and Mrs. Snow's 
lot on Hotel street between Alakea and Richards. 

No one of these lots is on Alakea street, which was widened, 
and no one has been made more convenient of access or benefited 
in any way that it is possible to discov-er. There is no evidence 
that the saleable value in the market or their value to rent has 
been especially appreciated by the widening of a street in the 
neighborhood. Any improvement in the town is doubtless a 
general advantage to all the property holders in the town. 
The introduction of water works, the better lighting of streets, 
facilities for transportation of freight and passengers, a good 
police service — everything of this character improves the value 
X of real estate in a town. 

But these are general advantages in which all parcels of real 
estate in the given town share in a greater or less degree, 
I cannot bring myself to the idea that a lot of land lying be- 
tween Alakea and the next street parallel to it is any more 
benefited by the widening of Alakea than any other lot in 
this town, not on the street. Only especial benefits are to be 
assessed, not general benefits in which all property owners in 
the town, district or island participate. 

The Legislature, in prescribing that the estates especially ben- 
efited by the improvement should be assessed for a portion of 
the cost of the improvement, certainly did not intend that the 
incidental advantages which might accrue to all the landed pro- 
perty in the district of Honolulu should contribute to the cost. 

The statute of Massachusetts distinctly limits the assessment 
of betterments to such real estate, including that a part of which 
is taken therefor, which receives any benefit and advantage there- 



MINISTER INTERIOR vs. PAPAIKOU SUGAR CO. 125 

from beyond the general advantages to all real estate in the city 
or town. Mass. Statutes, 1832, p. 344. I think our statute 
has the sarae meaning, and accordingly I find that part of 
the report or determination of the Commissioners which 
assesses benefits on the appellants' estate to be void. The re- 
maining objections to the report of the Commissioners it is 
not necessary to consider. 



MINISTER OF INTERIOR vs. PAPAIKOU SUGAR CO. 



Submission without Action. 

Hearing, June 25, 1890. Decision, July 3, 1890. 

judd, c.j., mccully, bickerton, dole. jj. 

In order to obtain a Boyal Patent, granting a fee simple title in a land 
awarded by the Oommission to Quiet Land Titles, the owner must 
pay to the Gk)yemment a oommntation of its share therein, one-third 
of the nnimproTed valne of the land at the time the award was made 

Submission of Case without Action, under Section 1140, 

Civil Code. 

The facts agreed upon are : 

1st. The Papaikou Sugar Company, a corporation, is the 
owner of the Ahupuaa of Papaikou, on the Island of Hawaii. 
The said Ahupuaa is that awarded to Aarona Keliiahonui, being 
Apana 1 of L. C. A. 11,215. 

2nd. The boundaries having been settled in accordance with 
the law, and the Commissioners of Appraisement having ap- 
praised the value of said land at two thousand dollars, being the 
value at the date of the award, said Papaikou Sugar Company 
made an application for the issuance of a patent. The necessary 
papers having been found in order, the Minister of the Interior 
refused to grant the said patent unless the commutation to be 
paid for said land should be based upon its value at the date of 



126 JUNE, 1890. 

the application for the issuance of such patent, which proposi- 
tion the Papaikou Sugar Company refused to entertain, and de- 
mands that it be issued upon a commutation based upon the 
feaid valuation of 12,000. 

ISSUE TN THE CASE. 

It is claimed by the Minister of the Interior that the valua- 
tion of the land, for a basis of payment of the commutation due 
the Government, should be the value of the land at the date of 
the application for a patent. 

It is claimed by the said applicants for patent that the basis 
of commutation must be that fixed by the commissioners of ap- 
praisement, that is, at the date of the award. 

Opinion of the Court, by Judd, C.J. 

It was the familiar practice of the Land Commission to issue 
an award for a land by its name. This was authorized by the 
Act of June 19, 1852. The land was held according tx) its an- 
cient boundaries until a survey was made and the boundaries 
established by the Boundary Commissioner, No royal patent 
could issue from the Land Commission. The award con- 
firmed title to the land. There remained outstanding, 
however, the interest of the Government therein. To en- 
able the holder of an award for a land to obtain a fee simple 
title, he must not only have its boundaries settled, but must 
commute the Government rights therein. Having done this 
he would be entitled to a royal patent to be issued under the 
Great Seal of the Kingdom. See Section 43, Civil Code. 

Kuleanas or awards to tenants in all the lands of the King- 
dom (except as below mentioned) were not subject to govern- 
ment commutation. See Act of 6th August, 1850. Awards 
for house lots (kuleanas) in Honolulu, Lahaina and Hilo, were 
subject to a commutation of one-fourth of the unimproved value 
of the land. Lands of the description of the one at bar — 
being what is commonly known as an ahupuaa — were subject to 
commutation with the government for one-third of their unim- 
proved value. 



MINISTER INTERIOR vs. PAPAIKOU SUGAR CO. 127 

Tlie law governing these matters is found in the " Principles 
adopted- by the Board of Coinniissioners to Quiet Land Titles 
in their adjudication of claims presented to them," pp, 81 to 94, 
Vol. 1, Statute of 1846— enacted as law October 26, 1846. 

On page 93 it is laid down that " the share of the government, 
or the body politic, to be commuted for with the Minister of the 
Interior by any confirmed claimant wishing to obtain a fee 
simple title (under Chapter 7 of part first of the Act to organ- 
ize the Executive Departments), this board understands from 
the evidence adduced before them, to be one-third part of the value 
of the land without improvements, which third part of unim- 
proved value, being paid by the confirmed claimant, should ex- 
tinguish the private rights of the King in the land," etc. 

One-third was the " maximum value of the interest retained 
in all the lands of the Kingdom." Id, 

Section 10 of the Act creating the Land Commission (p. 109, 
1 Vol., Statutes of 1846), authorized " the Minister of the Interior, 
in concurrence with the Privy Council, and under the sanction 
of His Majesty, to issue to any lessee or tenant for life of lands 
80 confirmed a patent in fee simple for the same upon payment 
of a commutation to be agreed upon by His Majesty in Privy 
Council." 

The maximum of one-third being fixed, a lesser rate could be 
accepted by the Government, and by resolution of the Privy 
Council, of June 8, 1847, the rate for which building lots could 
be commuted for was "one-fourth of the present unimproved 
value." The rate of all other lands remained the same — one- 
third of the unimproved value. In 1850 many of the chiefs 
extinguished the Government rights in the lands they re- 
tained by surrendering to the Government other lands to 
which they were entitled. But where this was not done, as 
in the case of the land of "Papaikou," under consideration, 
the Government interest of one-third still remained. 

At what time should the value of the land be taken as the basis 
upon which to estimate this one- third of the Government: 
at the date of the award, as contended for by the de- 
fendant, or at the present time, when the appraisement 



128 JUNE, 1890. 

* 

is made as claimed by the Goverument. The law is silent 
upon this question. There is much justice in the claim of 
the Government that the land has increased in value since 
the award was made, and the occupier has enjoyed * the 
use of the Government's share therein without pay during 
these thirty and over years, and as the occupier has neglected to 
commute the Government interest when land values were low, 
the Government should have the benefit of the unearned in- 
crease in value. 

There is a principle of law which we think should control in 
this matter. The uniform practice of the Government has been to 
accept in commutation of its rights in an awarded land one- 
third of the unimproved value of the land at time the award was 
made. The principle of law is that "In the construction of a 
doubtful and ambiguous law, the contemporaneous construction 
of those who were called upon to act under the law, and were 
appointed to carry its provisions into efiect, is entitled to great 
respect, and the Court refuses to interfere with such construction 
after it has been acted upon for a long time." Bell Telephone 
V8. Mutual Telephone, 6 Hawn., 460, and cases there cited. The 
construction put upon the law by the Executive Department 
need not be a formal one, but if it has been followed without 
challenge for a long series of years, it becomes a practical con- 
struction. In this case before us, where the statute was silent, 
and hence doubtful on the point, the public had a right to as^ 
sume that the rule adopted at the time the Act was put in force 
would continue to be the principle regulating the commutation. 

We also think that this law should be liberally construed in 
favor of a confirmed claimant, and hold that the value of the 
land at the time of the award should be the basis of its appraise- 
ment for commutation. 

Deputy Attomey-Oeneral Creighton, for plaintiff. 

W. R. Castle, for defendant. 



THURSTON vs. ROSS. 129 



L. A. THURSTON, Minister of Interior vs. G. J. ROSS, 

Auditor-General. 

Appeal prom McCully, J. 

Hearing, June 25, 1890. Decision, July 3, 1890. 

JUDD, C.J., McCULLY, BiCKERTON, DoLE, JJ. 

Voaohers for the support, maintenance and guarding of prisoners, while 
employed on the Yoloano road, were presented by the Minister of the 
Interior to the Auditor-General for approval ; the appropriation for 
that road was exhausted at the time said work was performed and 
said bills inourred. The vouchers were drawn upon the appropri- 
ation for support of prisoners. 

Held, the Auditor-General should have audited and approved them. 

Opinion of the Court, by Dole, J. McCully, J., 

Dissenting. 

The petition was for a writ of mandamus to compel the 
respondent to audit certain accounts or show cause for not doing 
so. The respondent appeared and showed cause before Mr. 
Justice McCully, who dismissed the proceedings, from whose 
decision the complainant appealed to this Court. Afterwards 
the parties filed the following stipulation : 

" It is hereby agreed between the parties to the above matter 
that all technical points which may arise in the case may be 
waived, and the judgment of this Honorable Court rendered 
upon the point as to whether or not the Auditor-General should 
audit bills incurred for the support, maintenance and guarding 
of prisoners employed upon the Volcano road, the appropriation 
for that road having been exhausted at the time said work was 
performed and said bills incurred, said bills being charged to 
the appropriation for support of prisoners." 

This stipulation radically simplifies the case and enables the 

Court to consider the law involved, without going into the im- 
9 



n 



130 JUNE, 1890. 

portant question of the legal discretion of the Auditor-General, 
which was before the Court below. 

The respondent contends, and the decision appealed from 
holds substantially, that the Legislature having appropriated 
a definite sum of money for the Volcano road, which had been 
exhausted, the performance of prison labor on the same work 
was a transfer of the appropriation for the Support of Prisoners 
and was consequently illegal ; also, that the performance of 
work on the Volcano road, in addition to work and materials 
paid for by the appropriation thereof, was defeating the intention 
of the Legislature, which countenanced only for that particular 
work such labor and materials as their appropriation might 
pay for. 

It is clear to us that the performance of prison labor on the 
Volcano road, under the circumstances, was not a transfer from 
the appropriation for support of prisoners, for the following 
reasons: A transfer is an expenditure of money belonging to 
one appropriation on account of another appropriation, so that 
the appropriation to which such money is entitled fails to get 
the benefit of it, as for instance, the expenditure of the appro- 
priation for the extension of Queen street on Kinau street. The 
law requires that " prisoners sentenced to imprisonment at hard 
labor shall be constantly employed for the public benefit on the 
public works, or otherwise, as the Marshal, with the approval 
of the Minister of Interior, may think best." (Civil Code, Sec. 
215.) The Volcano road being a " public work," the Minister 
of Interior was fully authorized to approve of the employment of 
prisoners thereon ; while so employed, as in any other locality or 
on any other '^public work/' it was necessary that such prisoners 
should be furnished with food and shelter and have the neces- 
sary guards and overseers, the expenses whereof are properly 
chargeable to the appropriation for the support of prisoners, as 
has heretofore been the custom. The performance of prison 
labor upon a " public work, " for which there is an independent 
appropriation, cannot be termed a transfer of an appropriation, 
for the appropriation for the support of prisoners is thereby 
expended according to law; and if the object of a distinct appro- 



THURSTON m. ROSS. 131 

priation, which is a public work, receives the benefit of such 
labor , that is also according to law and does not defeat the 
intention of the Legislature as to such other appropriation, such 
intention being limited solely to the expenditure of a definite 
sum of money out of the treasury on account of such object. 
The Legislature in its Appropriation Bill deals with money, 
rather than with services and material. It would undoubtedly 
be well for it to require that not only prison labor, but also all 
special services furnished by government employees to any 
enterprise supported by a legislative appropriation, should be 
charged against such appropriation ; as for instance, that the 
services of a government surveyor in laying or grading a public 
road should be charged against the appropriation for the road. 

« 

At present there is no law that requires the Minister of Interior 
to have the prison labor in question charged against the Volcano 
road appropriation. 

In brief, the payment of the bills in question should have 
been authorized by the Auditor-General, because the law re- 
quires it, and necessity demands it. The law requires that when 
prisoners can be " well employed in the performance of any pub- 
lie work" they shall constantly be so employed ; and necessity 
demands that these men, deprived of their opportunities of self- 
support by the authority of the State, shall be supported by the 
State; they cannot be left to starve, neither can such dealers as 
may furnish them with food and other necessaries during such 
confinement be denied their reasonable charges therefor. The 
contrary view would tend to embarrass if not defeat the execu- 
tion of the law for applying the labor of prisoners to public 
works, and in some cases at least, as in the case in point, to cast 
an unnecessary slur upon the Government in its prison manage- 
ment ; for carried to its logical sequence, such a view would 
insist either that the prison laborers in question should have 
gone without food and other necessaries during the month they 
were occupied on the Volcano road, or that the dealers who 
furnished them must now lose the value of the materials fur- 
nished. 



132 JUNE, 1890. 

We are, therefore, of the opinion that the Auditor-Greneral 
should authorize the payment of the bills in question. 

Concurring Opinion op Bickerton, J. 

This case, as it appears here by the stipulation, is shorn of 
the most important questions that were argued and passed upon 
by Mr. Justice McCuUy, viz.: The judgment and discretion of 
the Auditor-General to determine whether a bill was drawn 
upon a fund which was applicable to it, and further, as to abuse 
of this discretion. There does not seem to be any appeal on 
these points which were decided in favor of the Auditor-General 
in the Court below, but by the stipulation they are not now before 
us, and we are limited to the one question, which in my opinion 

m 

assumes the shape of a question submitted by agreement of the 
Minister of the Interior and the Auditor-General to the Supreme 
Court for their opinion ; the question as to whether a writ of 
mandamus should issue seems to have been abandoned 

The law, as it now stands, undoubtedly gives the Minister of 
the Interior full authority to use prison labor on any public 
work ; there is no law which requires that such labor shall be 
charged to the appropriation for such public work. It had been 
the custom for a long time to do so, until the late Administra- 
tion abolished the custom or rule, thereby placing at the dis- 
posal of the Minister of the Interior the whole appropriation of 
$80,000 and the contingent one of $15,000 for the support ot pris- 
oners, which he could use in the shape of labor to supplement any 
appropriation for any public work. A work for which an appropri- 
ation of, say, $10,000 was made could be made to appear to cost 
only $9,000, leaving a balance of $1,000 unexpended, when in fact 
it had cost $19,000 by the use of prison labor, which had cost the 
country $10,000. As the law now stands the Minister might 
have put all the prison labor in the Kingdom on the Volcano 
road and no one could prevent it until he would be called to 
account for his doings by the Legislature. Wherever these 
prisoners may be they have to be fed and guarded and the bills 
paid, notwithstanding the fact that they may be working on a 
public work for which the appropriation is exhausted. 



THURSTON V8. ROSS. 133 

After looking at the question from all points of view, the fact 
still remains that the Minister had the authority of law to em- 
ploy these prisoners on the Volcano road, and the bills for their 
support and guards had to be paid from the only appropriation 
available, viz., support of prisoners. If the Minister misused or 
abused his authority, it was a matter between him and the 
Legislature. There certainly is some legislation required on 
this matter, for, although this is not actually taking so many 
dollars from one appropriation and devoting it to other work 
for which there was an appropriation that is exhausted, the re- 
sult is the same, the work is costing more than was contem- 
plated or intended by the Legislature. 

I feel compelled, as the law now stands, to concur in the con- 
clusion arrived at in the above opinion. 

Dissenting Opinion of McCully, J. 

This case purports to be an appeal of the matter which camd 
before me in March last, but now under the following stipula- 
tion: 

"It is hereby agreed between the parties to the above matter 
that all technical points which may arise in the case may be 
waived, and the judgment of this Honorable Court rendered 
upon the point as to whether or not the Auditor-General should 
audit bills incurred for the support, maintenance and guarding 
of prisoners employed upon the Volcano road, the appropria- 
tion for that road having been exhausted at the time said work 
was performed and said bills incurred, said bills being charged 
to the appropriation for support of prisoners." 

I am at a loss to understand the legal status of the present 
case. Counsel say that no writ of mandamus is now asked. I 
therefore respectfully submit that this is not an appeal of the 
case formerly heard, and that the law as decided before stands 
as the law of the case, namely, that the authority of the Audi- 
tor-General to audit — that is to examine and approve or refuse to 
approve of bills — is an authority to exercise his judgment or dis- 
cretion therein, and that hence he cannot be compelled by writ of 
mandamus to make a certain decision, unless it shall appear 



134 JUNE, 1890. 

that he has abused his discretion. The Court now not being 
called to hear an appealed mandamus case, what legal form 
known to our law is presented? It is clearly not the submis- 
sion by parties of a question in difference which might be the 
subject of a civil action in the Supreme Court, upon an affida- 
vit that the controversy is real, and upon which final judgment 
may be rendered and enforced (C. L., p. 330.) It is not one- of 
the three cases provided by Art. 70 of the Constitution: the 
King, his Cabinet and the Legislature shall have authority to 
require the opinions of the Justices of the Supreme Court upon 
important questions of law ; for it is the request of the Minister 
of the Interior and the Auditor-General. 

It is stipulated that all technical points may be waived. A 
technical point might be the substitution of the newly ap- 
pointed Minister of the Interior in place of the Minister who 
brought this petition, but I do not understand the above points 
to be technical, but of the essence of the matter, so that, being 
waived, nothing is left. As, however, argument has been made 
before us without considering the objections which appear to me 
to lie against the mode of proceeding, I wish to say that upon a 
reconsideration of the question whether the Auditor-General 
should have audited the bills which he refused to approve, and 
whether such refusal was an abuse of his discretion, I am of the 
opinion I formerly expressed. 

It was a crucial question put to the Attorney- General during 
the argument, whether, if the Minister of the Interior had ex- 
pended the $30,000 appropriated for the Volcano road in a con- 
tract for building fifteen miles of it, he would be authorized to 
build the remaining fifteen with prison labor supported out of 
the $80,000 appropriated for the support of prisoners. The At- 
torney General gave the answer which the logic of his ix)sition 
required, that the Minister would be authorized thereto. It re- 
sults from this that no "specific appropriation'' is specific in 
amount, for it may be increased by as much more out of $80,- 
000, or other amount appropriated for prisoners' support, as the 
Minister may please to add to it. 

It was claimed in argument that the drafts on the prisoners' 



THURSTON V8, ROSS. 135 

fund were not expenditures on the road, but for their support. 
Now, if the Auditor approved the bills, the prisoners would be 
employed on the road; if he disallowed them, the prisoners 
would not be worked there. So it is only a difference of form 
of words how the prisoners' support fund is applied to building 
the road. It seems to me the actual use of this fund for build- 
ing the road cannot be cured by styling it a draft for the sup- 
port of the prisoners. In order to proceed with an appearance 
of legality the Minister has been compelled to drop the system 
of credits for realizations for prison labor, because the realiza- 
tions would be payments out of the appropriation for this road. 
When this was exhausted there were no longer realizations 
from prison labor. In a proper business transaction the cost of 
the prisoners would be drawn from the fund for maintaining 
them, at the same time that a like or suitable amount is charged 
for their labor against the appropriation for the work on which 
they were employed. 

And I do not find a justification for this indefinite addition 
to the special sum allowed for this road in the general statute 
provision which directs the hard labor to which prisoners are 
sentenced to be applied to public works. It was not necessary 
to couple with it that it should be counted as a Government re- 
source and realization, and accounted for as cash or credit to 
some account. The provision in Sec. 216, that prisoners may 
be let out to labor for private individuals, does not express a re- 
quirement that the proceeds shall not be rendered as a credit, 
but can any one doubt that it ought to be done? 

For these reasons, I think the Auditor-General did not abuse 
his discretion in refusing to approve the bills in question. 

Attorney- General Peterson, for petitioner. 

F, M, Hatch, for respondent. 



Decision of McCully, J., Appealed From. 

The case was heard on the petition and answer without the 
introduction of testimony. They are here set forth in full. 



136 JUNE, 1890. 

Petition. 

The petition shows unto this Court : 

That the complainant herein, L. A. Thurston, is the Minister 
of the Interior for the Hawaiian Kingdom. 

That George J. Ross is the duly appointed and commissioned 
Auditor-General of the Kingdom, and as such is charged with 
the auditing and approving the accounts and disbursements of 
the Hawaiian Government. 

That Section 215 of the Civil Code reads as follows : *' All 
prisoners sentenced to imprisonment at hard labor shall be con- 
stantly employed for the public benefit on the public works, or 
otherwise, as the Marshal, with the approval of the Minister of 
the Interior, may think best." And Section 8 of an Act entitled, 
An Act to amend the existing laws relating to the road tax, 
dated August 23rd, 1862, reads as follows : ** The Minister of 
the Interior is hereby empowered in his discretion to detail for 
labor on any public road, upon application to that purpose from 
any Road Supervisor, as many prisoners as he may deem neces- 
sary for such work ; said prisoners to be under the care of their 
usual overseers and subject to the Road Supervisor only as far 
as regards the mode of their employment." 

That there are now about' 300 prisoners sentenced to imprison- 
ment at hard labor, confined in the various jails of the kingdom. 

That in accordance with the mandate of said first above men- 
tioned statute, and in pursuance with the discretion vested in 
him by the said above recited act of 1862. the said Minister has, 
during the twenty-three months of the biennial period now * last 
past, caused all of such prisoners to be employed upon the 
public works, and more particularly upon public roads. 

That during such period the cost of the food, clothes, guards 
and lunas necessary for the support, maintenance and guarding 
of all prisoners, including said prisoners in Hilo and Puna, has 
been charged to the appropriation entitled ^'support of prisoners." 

That of said prisoners about fifty have been during said period, 
and now are, confined in certain jails situate in the Districts of 
Hilo and Puna in the Island of Hawaii, and in accordance ^vith 
the law above mentioned, and under the discretion vested in the 



THURSTON vs. ROSS. 137 

said Minister, he has caused said prisoners to be employed upon 
the public roads located in the said Districts of Hilo and Puna, 
including the public road extending from Hilo to the Volcano 
of Kilauea. 

That the records of the Interior Department show that since 
the commencement of the keeping of such records it has always 
been the custom to charge all of such expenses to such appro- 
priations. 

That the defendant hereto has, during the present biennial 
period and up to the present time, never refused to audit any 
bills incurred for the support or guarding of said prisoners or 
any other prisoners, until the presentation to him of certain 
bills for food furnished to said prisoners and the bills for 
salaries of guards of said prisoners, at Hilo and Puna, incurred 
during the month of January, 1890, a copy of which bills is 
hereunto annexed and marked ** Exhibit A " and made a part 
hereof. 

That said bills were legitimately and lawfully incurred by 
the Department of Government authorized to incur them, in 
accordance with the long-established precedent and custom of 
the said Department, and that the material and services therein 
described and claimed for have been furnished to the said Interior 
Department, and the amounts therein severally claimed are law- 
fully due to the several persons therein claiming the same. 
That there is no other appropriation available from which 
said bills can be paid, other than the said appropriation for the 
support of prisoners. 

That by reason of the said refusal of defendant to audit said 
bills the complainant is unable to lawfully pay the same, there- 
by causing unnecessary and uncalled for injury and loss to the 
persons who have furnished such material and rendered such 
services, and preventing the complainant from properly carry- 
ing out the duties of his office of Minister of the Interior. That 
on or about the 24th day of February, 1890, the said bills 
were in due and regular course of business presented to the 
defendant hereto, and he was requented to audit the same, but 
defendant refused and still refuses to audit the same, claiming 



/■ 



138 JUNE, 1890. 

that such bills should be charged to the specific appropriation 
for public work upon which the prisoners, concerning whom such 
bills have been incurred, are at the time being engaged upon. 
That there is a sufficient balance of the naid appropriation for 
support of prisoners to pay the said bills if the same are proper- 
ly audited. 

That if said bills are not audited it will entail irreparable loss 
to the Hawaiian Government and to tha public welfare by 
reason of the fact that the said Minister, and the other proper 
authorities chatged therewith, will be unable to obtain guards 
and food for the care and maintenance of eaid prisoners unless 
they can be paid for. That the auditing and approving of said 
accounts is a duty attached to the office of the said George J. 
Ross, as Auditor-General, and may be legally required of him. 

Wherefore your petitioner prays that a Writ of Mandamus 
may be issued and directed to the said George J. Ross, Auditor- 
General, commanding and enjoining him to audit and approve 
the bills and accounts according to schedule " A '* hereto attach- 
ed, or to show cause, if any he has, for not doing so before this 
Honorable Court at a day and a place to be fixed. 

And your petitioner will ever pray, etc. 

Answer. 

Said defendant, George J. Ross, by protestation, not waiving any 
right of exception to the insufficiencies of said petition nor to 
the right of said petitioner to maintain the si^me, for return and 
answer to such portions as he is advised it is necessary to 
answer, says : 

That he admits that he is Auditor-General of the Kingdom. 
And he says that the auditing or refusal to audit any bill pre- 
sented to him involves the exercise of his official judgment and 
discretion, and is not subject to judicial control by mandamus. 

And for further answer this defendant says that he admits 
that the Minister of the Interior during the twenty-three 
months last past has caused all of the prisoners sentenced to 
imprisonment at hard labor, in all about three hundred in num- 
ber, to be employed upon public works and public roads. That 



J 



THURSTON VB, ROSS. 139 

he admitB that the coBt of food, clothes, guards and lunas 
necessary for the support, ipaintenance and guarding of all 
prisoners has been charged tt) the appropriation entitled ** Sup- 
port of Prisoners," but denies that the pay of lunas is properly so 
charged. That he admits that about fifty prisoners are now con- 
fined in certain jails in the Districts of Hilo and Puna, and 
have been employed upon public roads, including the public road 
extending from Hilo to the Volcano of Kilauea, and says that 
they have been employed in constructing the road last named. 
That he is ignorant as to the custom of the Interior Depart- 
ment in regard to charging such expenses to said appropriation. 
That he admits that he has not heretofore refused to audit 
bills for the support of prisoners until the presentation of the 
bills referred to in said petition. 

He denies that said bills were legitimately and lawfully in- 
curred by the Department of Government authorized to incur 
them in accordance with the long established precedent and 
custom of said Department ; and he says that when prisoners 
have been employed upon public works, the custom has been to 
make a charge against the appropriation authorizing such work 
for the labor of such prisoners, and to turn the same into the 
treasury as a Government realization, which the complainant in 
this case has not •done. 

That he admits that the materials and services claimed for 
have been furnished. That he denies that his refusal to audit 
said bills prevents the complainant from properly carrying 
out the duties of his office as Minister of the Interior. That 
he admits that on or about the 24th of February last, 
said bills were presented to him and he refused to audit the 
same. And he says that during the time covered by said bills, 
said prisoners were employed upon a public work, to wit, the 
construction of a road from Hilo to the Volcano of Kilauea, for 
which a special appropriation was made by the Legislature ; 
and he says that while so employed said bills should not be 
charged to the appropriation for the support of prisoners. And 
he further says that the appropriation last named, at the time 
said bills were presented to him, was exhausted. 



140 ' JUNE, 1890. 

And he denies all other allegations in said petition contained. 
Wherefore he prays said proceedings may be dismissed. 

By the Court. 

It is first to be considered whether the auditing or refusal to 
audit any bill presented to him involves the exercise of his 
official judgment and discretion. Is it subject to judicial con- 
trol by mandamus? 

The terms "audit" and "refusal to audit" are here used in a 
sense generally employed and understood, but it seems to me 
a discrimination may be made with advantage in accuracy. 
It is not intended by the words "refusal to audit," a refusal to 
examine, literally to hear, the account presented, but a refusal 
to approve the account. 

The petition in this case alleges in fact not a refusal to audit, 
but a refusal to approve certain accounts, and the Court is asked 
to command the respondent to approve them. To approve them 
for what and as what? The respondent defends his action by 
stating that the prison labor, concerning which the expenses in 
these bills were incurred, was performed upon a work for which 
a specific appropriation had been made, viz., the Volcano Road, 
and in effect, that the bills were drawn upon an appropriation 
to which they were not chargeable, viz., that for the support of 
prisoners. 

Has the Auditor-General authority to consider and determine 
whether accounts are drawn properly on their appropriation 
items, and to refuse approval if he considers that they are not? 
We must find the answer in the language and scope of the stat- 
ute which institutes the office of Auditor-Grcneral, (C. L. p. 668.) 
His duties relate to the receipts of moneys and to the disburse- 
ment of them. It is only with the latter that this case is con- 
cerned. By Section 6, the Minister of Finance is required from 
time to time to calculate the amount of moneys likely to become 
due and payable during a period not exceeding one month en- 
suing, setting it forth in a schedule under the same divisions 
and heads that shall have been employed in the appropriation 
thereof, which schedule is to be transmitted to the Auditor- 



THURSTON V8. ROSS. 141 

General. By Section 7, before countersigning any such instru- 
ment the Auditor-General shall ascertain if the sums therein 
mentioned are then (l)legally available for, and (2) applicable 
to the service mentioned in the instrument, and so finding shall 
countersign and return the instrument to the Minister. Pro- 
vided, that in case he shall find that the sums mentioned, or 
any of them, are not then legally available or applicable to the 
service mentioned, he shall return the instrument to the Minis- 
ter for correction, attaching thereto a statement of what he has 
found to be not legally available or applicable. By Section 9, 
every account shall be considered duly authorized that is in 
accordance with any existing law or regulation, or has been 
directly sanctioned by one or other of the responsible Ministers 
of the Crown and covered by any Appropriation Act in force at 
the time. 

The only construction, in my view, to be placed upon the stat- 
ute is that the Auditor has the function of determining if the 
account is drawn against the proper appropriation, and whether 
there is a sufficient unexpended balance thereof. For a broad 
illustration taken from two adjacent items in the Appropriation 
Bill, an account for " repairs and furniture of the Insane Asy- 
lum" would not be " applicable" to the appropriation for the 
" Honolulu Fire Department," and such an account being pre- 
sented for audit would presumably not be countersigned. And 
presumably the Court, if applied to, would interfere by injunc- 
tion to prevent countersigning. Is the act of the Auditor in 
allowing or disallowing an account in respect to its being 
" applicable to the service mentioned," ministerial, or one of 
judgment, opinion, discretion? I think there can be no doubt 
of its being of the latter description. In the case before us the 
Minister of the Interior, who is not to be presumed to be design- 
edly making a draft which is not in accordance with the law, 
and seeking too to enforce it in court, differs in opinion from 
the Auditor-General. It is a matter then of judgment. In the 
case of Castle vs. Kapenaj 5 Hawn., at p. 37, the Court say: 
'* The Courts will not undertake to guide the judgment and dis- 
cretion of public officers, which would be to assume the super- 



142 JUNE, 1890. 

vision of all branchen of Government, but will only intervene 
to compel the performance of purely ministerial duties." This 
doctrine will not be controverted. High on Extraordinary 
Legal Remedies, in Section 42, says, that " it is a fundamental 
rule underlying the entire jurisdiction by mandamus, and es- 
pecially applicable in determining the limits to the exercise of 
the jurisdiction over public officers, that in all matters requir- 
ing the exercise of official judgment or resting in the sound dis- 
cretion of the person to whom a duty is confided by law, man- 
damus will not lie either to control the exercise of that discre- 
tion, or to determine upon the decision which shall be finally 
given." A ministerial duty it would be to audit, that is, to ex- 
amine the account and approve or disapprove of it, and if the 
Auditor should decline to do that, there is no doubt of the juris- 
diction of this Court to issue its writ of mandamus to compel 
him to the performance of his duty. Thus the Court will com- 
pel a Magistate or a Board to entertain an application legally to 
be made, and give some decision thereon. Quoting further 
from the above cited section, " while it is proper by mandamus 
to set in motion officers vested with powers of a discretionary 
nature, and to require their action upon the matters officially 
entrusted to their judgment and discretion, the Courts will in no 
manner interfere with the exercise of their discretion nor at- 
tempt by mandamus to control or dictate the jtidgment to be 
given." 

Against the rule so expressed and termed fundamental, the 
counsel for the relator cites the case of Wood vs. Strothevy 76 
Cal., 545, and the authorities therein assembled. The case was 
heard before the Commissioners of the Court. It holds that the 
test for the issuance of a writ of mandamus to compel a board, 
tribunal or other officer to do an act which he has refused to do, 
is not whether the refusal involves the exercise of discretion, or 
an exercise of judicial power, but whether it was a determina- 
tion which the law intended to be final, and if not, whether 
there is a plain, speedy and adequate remedy in the ordinary 
course. The matter was against an Auditor of street contract 
accounts, who by the Act was required before countersigning to 



THURSTON vs. ROSS. 143 

be satisfied that certain {proceedings were legal. The Commis- 
sion examining the defendant's return found from it that the 
proceedings were legal, and so the Auditor was wrong in his 
refusal to countersign the warrant, and there being nothing in 
that statute showing that the determination of the Auditor was 
intended to be final, advised that the order for the mandamus 
be aftirmed. 

In Ex Parte Bradley, 7 Wall., at p. 377, the language of the 
Court is: ** When the act complained of rests in the exercise of 
discretion, the remedy of mandamus fails; but it must be a 
sound discretion and according to law." Ez Parte Lecombe, 19 
Howard, 13; Ex Parte Burr, 9 Wheaton, 630. The ground of 
decision in Bradley's case was that the Court below had no 
jurisdiction to bar the relator for a contempt committed before 
another Court. 

In Village of Olencoe vs. The People, 78 111., 382, upon a peti- 
tion to the council for the appointment of time for holding an 
election; while the council had no discretion in the matter of 
ordering an election, it had discretion in selecting the time, and 
it was held that a postponement for an unreasonable time, such 
as would defeat the public purpose, would be an abuse of their 
discretion which warranted that it be controlled by mandamus. 
In People vs. Superior Court, 10 Wend., 286, a mandamus was 
issued to vacate an order granting a new trial when it ap- 
peared by the return that the party in whose favor a new trial 
had been ordered was chargeable with laches. 

I will now discuss whether the case at bar comes within the 
description and principle of such as those wherein, although 
the act of the officer or subordinate tribunal is one of discretion 
and judgment, it may be controlled when it appears that there 
has been a want of jurisdiction, and abuse of discretion, or a 
plain or willful misconstruction of the facts. 

The bills presented for audit are as follows : 

Hawaiian Government. Interior Department. 

Appropriation for Support of PrisoDers, Dr. : 

To J. E. Staples, for servioes as jailor ^of the Volcano Boad 

Jail, for the month ending January 81, 1890 960 00 



144 JUNE, 1890. 

In like form and date to the same person as assistant jailor 90 00 

In like form and dat-e to M. Garminos as night watchman of this 

jaa 40 00 

Ditto to Eaiama for services as luna over prisoners on the Volcano 

Boad for the month of January 85 00 

Ditto to J. F. Brown for ** 4000 

Ditto to 0. Keanahou for " 30 00 

Two other bills T will speak of hereafter. 

The Auditor-General considers that these are bills of expend- 
itures on the Volcano Road. Per contra it is contended that 
they arc items of expense for the prisoners, who must have 
jailors and lunas, or overseers of work. There is, I believe, no 
separate appropriation for the payment of these, only the salary 
of Jailor of Oahu Prison being specially provided for. And 
that it is not to be considered where the prisoners, with their 
attendant expense, are employed, in pursuance of the require- 
ment of the law that they be employed on public works and 
roads. 

The settlement of the controversy must depend on the consist- 
ent interpretation of this law with the Appropriation Act. I do 
not think this is difficult, and my view is this: The law requir- 
ing prisoners to be employed in labor upon public works is the 
authority and direction of the Minister of the Interior as to the 
nature of the labor to which those sentenced to imprisonment at 
hard labor shall be put. It might have been a statute, for in- 
stance, requiring them to be employed within the prison prem- 
ises in the manufacture of shoes. It was parti<jularly necessary 
to make a statute provision for taking prisoners outside the 
prison premises. The same law (Section 216) provides that 
when prisoners cannot be well employed on public work, they 
may be hired out to private persons. For female prisoners the 
provision (Section 217) is, that they shall be employed in mak- 
ing mats, in sewing, in washing the prisoners' clothes, and in 
other suitable occupations as the Marshal may direct. 

The law under which money is disbursed is entitled, An Act 
making special appropriations, etc. Under the head '^ Roads and 
Bridges" is, " Road from Hilo to Volcano, $30,000." This au- 
thorizes the expenditure upon that work of that sum, and no 



THURSTON V8. ROSS. 145 

one would claim that general drafts could be made on the 
Treasury for amounts in excess of that. 

It cannot be denied that the allowance of these bills would be 
to apply further sums to this work from the special appropria- 
tion for the " support of prisoners." It is an obvious remark to 
be made, that the propriety of such a draft does not depend on 
the fact of the designated sum of $30,000 having been exhausted 
or not. If it should be correct now to apply money from the 
support of prisoners' fund, the road appropriation being ex- 
hausted, it would have been correct to do so during the whole 
period. The sum of the bills here presented is $550.40. A like 
sum for each of the twenty-four months of the biennial period 
would amount to $13,209.60. But small or great, or for a longer 
or shorter time, what should be so taken would be an addition 
from the one fund to the other. It is plain that the power to 
do so would enable the Minister of the Interior to practically 
make his own appropriation for every object in which prison 
labor may be employed. The expressed will of the Legislature, 
that the expenditure should be such a sum for such an object, 
would be overcome; no such item would represent a definite 
amount. It would be the granted amount plus the support of 
the prison labor upon it. 

I hold, therefore, that the particular statute prescribing a sum 
to be expended on a public work is not controlled by the stat- 
.ute which generally designates the mode of working prisoners. 
The determination of the Auditor-General that the fund for 
the " support of prisoners" was not applicable to the payment 
of these bills, in this view, was not an abuse of discretion, and 
was not beyond his province or jurisdiction to be controlled by 
the Court. 

The provisions of the Act of 1862 may be claimed to particu- 
larly justify the employment of prisoners without reference to a 
fund for the payment of the expenses appurtenant. I think 
this statute applies to the ordinary annual work on existing 
roads, and leaves the question of payment to be determined by 
other statutes. They are roads in charge of the Road Super- 
visor. He is permitted to make application for this description 
10 



1 



146 JUNE, 1890. 

of labor. There is nothing which imports that it is not to be 
paid for out of the funds for the road making. In the case be- 
fore us a new road is provided for. It is as distinctly a separate 
public work as would be the erection of a new public building. 
The bills presented are for a separate set of jailors and superin- 
tendents required in working prisoners on this road. The reason- 
ing I have applied to the construction of Section 215, in my 
view, equally applies here. 

The two other bills are admitted to be for sustenance of the 
prisoners while employed on the Volcano road. Standing by 
themselves they might be considered payable out of the fund for 
the support of prisoners, but in view of the fact, brought to the 
Auditor's knowledge, that the result would be an application of 
so much money to the Volcano road, in lieu of charging the 
labor at the statute valuation of fifty cents per day to the road 
appropriation, and making no charge for the sustenance, these 
bills may be classed with the others. 

In respect to the custom, shown by the pleadings, to charge 
such expenses as these bills represent to this support of prison- 
ers' appropriation, and the fact that the respondent has during 
the present biennial period so allowed them up to the present 
refusal, I have only to say that when a judicial interpretation 

is asked it must be based upon principles. If practice hitherto 
has not conformed to the law strictly construed, this cannot set 
aside the law. From time to time the Courts are called upon 
to correct loose practice. It is not surprising that the exami- 
nation of an Auditor (an office of recent date in this country) 
should discover irregularities. The office was instituted for the 
purpose of scrutiny, and an Auditor who does not audit may as 
well not exist. The power given to this officer is undoubtedly 
a high one. By Section 19 of the Audit Act it is provided that 
no payments shall be made by the Minister of Finance, sal- 
aries excepted, unless the accounts therefor shall have been 
previously countersigned by the Auditor. To enable the Audi- 
tor to maintain this high and quasi judicial position, he is ap- 
pointed to hold his office during good behavior, only to be re- 
moved for incompetency or misbehavior by the Eang with the 



THURSTON VB, ROSS. 147 

advice of the Cabinet Council upon the address of the Legisla- 
tive Assembly^ and his salary cannot be diminished during his 
continuance in office. It is equal to the salary of a Minister or 
a Justice of the Supreme Court. 

The relator complains that by the refusal of the defendant to 
approve these bills he is prevented from properly carrying out 
the duties of his office as Minister of the Interior, and it was 
warmly contended in argument that the Auditor was unwar- 
rantably assuming a power to control the Grovernment and to ar- 
rest its action. Yes, the unauthorized expenditure by the Gov- 
ernment or any branch of it he may arrest. It was even 
claimed that the fact that the bills were presented by a Crown 
Minister was a sufficient warrant for the allowance. But not 
so do I construe the scope of the Audit Act. The judgment 
that claims are made upon funds legally available or applica- 
ble is the judgment of the Auditor for himself. 

Finally, the question may be asked — it was implied here — 
what is the Minister to do with the prisoners when there are 
no unexpended appropriations for roads and public works? I 
answer that it is not for the Auditor to join with the Minister 
in enlarging the expenditure granted by the Legislature to cer- 
tain works. In this instance it has not been shown that the 
Minister is in this position. The Auditor has to do his dufy on 
cases as they arise. If there is or should be a disproportion be- 
tween the amount of prison labor at the service of the Govern- 
ment and the amount of public work provided for, it may be a 
matter for the Legislature to consider. The action of the Audi- 
tor in this instance may call attention to the matter. 

The prayer for a writ of mandamus is denied. 



148 JUNE, 1890. 



HILO SUGAR COMPANY V8. J. TUCKER, Deputy Tax 

Collector. 

Submission on Agreed Facts. 

Hearing, June 25, 1890. Decision, June 25, 1890. 

judd, c.j., mccully, bickerton, dole, jj. 

A Sugar Plantation retomed to the Assessor its various tracts of lands, held 
by it under lease, at a value of $15 per acre, which was raised l^ the 
Tax Appeal Board to 920, as the value of oane land held in fee simple; 
and paid the taxes thereon. The Plantation was assessed on these 
same lands the sum of 919,118.25, as the value of their leasehold inter- 
est in the same. 

Held, that as the leasehold interest was assessed close up to the assess- 
ment on the reversion, it was double taxation, and taxes paid there- 
on under protest can be recovered. 

Opinion of the Court, by Dole, J. 

It does not appear from the record how this cause has reached 
the Court in Banco, but it was argued before us under an un- 
doubted mutual understanding of both sides. The following 
agreed statement of facts and issues of law was submitted by 
counsel of both parties. 

The Hilo Sugar Company is lessee of various tracts of land, con- 
taining in all an area of 1283 acres, under covenant to pay taxes. 
The Hilo Sugar Company returned these lands for taxation 
by name at the same rates per acre as their fee simple lands of 
similar nature, viz.. Fifteen dollars ($15) per acre for cane lands 
and one dollar per acre for bush land. The Board of Tax, Ap- 
peal raised the assessment of cane land to twenty dollars ($20) 
per acre. Taxes at this valuation were paid by the Hilo Sugar 
Company upon all of said lands. 

The Hilo Sugar Company were further assessed upon these 



HILO SUGAR CO. vs. TUCKER. 149 

lands the Bum of nineteen thousand one hundred and thirteen 
25-100 dollars ($19,113.26) as the value of their leasehold inter- 
est iti the same in addition to the amount returned by the com- 
pany, and paid the tax on same under protest. The Hilo Sugar 
Company made no separate return of their leasehold interest. 
The qustions agreed to be submitted are : 

1. Can there be legally, assessed against a tenant upon his 
interest an amount greater than the established value of similar 
land held in fee simple ? 

2. Can assessment legally be made against a landlord's in- 
terest and a tenant's interest^ the sum of which would be greater 
than the assessable value of the same land held in fee ? 

3. The Hilo Sugar Company having made no separate return 
of their leasehold interest in the above named lands, can .they 
maintain this suit ? 

A deposition of John Scott was also filed by both counsel as 
evidence. 

It appears from the evidence that the plaintiff having cove- 
nanted with his lessors to pay the taxes that should be payable 
upon the lands under the several leases, undertook to make re- 
turns of such taxes directly to defendant, the Deputy Assessor, 
which arrangement the Deputy Assessor fell in with, and looked 
to the plaintiff alone instead of his lessors for the assessment 
returns and the taxes of the lands in question. 

This method was irregular, for a private agreement between 
lessor and lessee that the latter should pay the taxes does not 
affect the liability of the landlord to the Government. Such an 
agreement is purely a private matter between the parties to th6 
lease, and gives the lessor a claim upon the lessee for all taxes 
which he is required to pay on account of the leased land. 
{Brown, Assessor, vs. Smith, No. 726, Interm. Div.) 

The defendant's position is that if we regard the first taxes 
paid by the plaintifi" as the taxes upon the landlord's interest in 
the land, as they were clearly intended to be, there is nothing to 
prevent a further assessment against the tenant, the plaintiff, 
for his interest in the same land under his lease. He should 
have made a return of his leasehold interest — as he actually did 



1$0 JUNE, 1890. 

in the case of two of the lands for which he had not convenanted 
to pay the landlord's taxes, but not having done so, it devolved 
upon the assessor to assess such interest, *^ according to the best 
information within his reach." This was done, and there is no 
appeal from such assessment. 

We have, therefore, to consider whether this Court has juris- 
diction over the cause. It has been the practice of Courts to re- 
fuse to investigate complaints based upon the charge of over 
assessment, as appeals from such assessments to the Tax Appeal 
Courts are provided by statute, except in cases of a failure to 
make any return within the time required by the statute. 

But the plaintiff claims that inasmuch as the taxes already 
paid upon the land are assessed upon its full value, as if no 
lease existed, which appears to be admitted by the defendant, 
there is no value remaining which may be assessed as the tenant's 
interest, and that the assessment, being therefore made upon an 
erroneous principle, is illegal. 

It is doubtless a correct principle of law, that the reversion 
and the leasehold interests of real estate held under lease are 
together worth only the unincumbered value of the land. There 
may be, in certain circumstances, exceptions to this rule, but it 
must be generally regarded as giving the true status of the mu- 
tual relations of such interests. 

In the matter before us the reversion was assessed to the full 
value which had been fixed by the Tax Appeal Court as the as- 
sessable value of such lands in the district, which assessment 
the plaintiff submitted to. This consumed the whole value of 
the land in question and left no surplus value to be assessed on 
account of leasehold interests there. But the Deputy Assessor 
did assess such interest and for a large amount, i, e., $14.89 
an acre for both cane land and bush land. As we do not know 
the comparative areas of the cane land and bush land, we cannot 
say whether this assessment was more or less than the assess- 
ment on the reversion, which was $20 an acre for cane land and 
one dollar an acre for bush land, but it is safe to say that the 
leasehold interest was assessed close up to the asnessment on 
the reversion. This was clearly wrong, and by it the Govern- 



i 



HILO SUGAR CO. vs. TUCKER. 151 

ment has received nearly double the taxes it was entitled to 
from the land in question. 

It is not for us to review the judgment of the Assessor in es- 
timating values, but we may interfere where the assessment is 
illegal, and we think the one submitted to us is so for the rea- 
sons we have given, and in brief, not so much because the as- 
sessment upon the leasehold interest was excessive, as because 
it was made at all, after the value of the land had been fully 
assessed against the reversion. 

The fact that the plaintiff made no returns of its leasehold 
interest is no bar to this suit, the assessment complained of 
being illegal. Phelps vs, Thurston, 47 Conn., 485; State vs, Ross, 
23 N. J. L., 521; State vs Quaife, Id,, 89, and State vs, Metz, 31 
N. J. L., 365. 

It will be seen that in the foregoing opinion we have sub- 
stantially answered the questions submitted so far as they are 
applicable to this cause, and we need not refer to them further. 

Let judgment be entered for the plaintiff for $191.13, with 
interest from December 14th, 1887, the date of the payment of 
the taxes under protest. 

F, M. Hatch, for plaintiff. 

A, P. Peterson, Attomey-Oeneral, for defendant. 




152 JULY, 1890. 



THE KING V8. T. W. HOBRON and J. SHAW. 

Appeal from Police Justice of Honolulu. 
Hearing, July 26, 1890. Deoibion, July 81, 1890. 

JuPD, C.J., McCuLLY, Bickerton, Dole, JJ. 

The election law of 1888 is oonstmed to mean that for the purpose of vot- 
ing for Nobles the three months' required previous residence may be 
had in different precincts or local districts of the island district for 
which the Nobles are elected, but the voter must at the time of the 
election be a resident of the precinct in which he is registered for 
voting. 

In the second case the Court considers whether upon an agreed state- 
ment of facts the voter has retained his residence in the precinct of 
his registration. 

Opinion of the Court, by McCully, J. 

The defendants were members of the Board of Inspectors of 
Election for Precinct 2, District 2, Island of Oahu, at the special 
election of July 9th, 1890, for the election solely of one Noble 
in place of one who had resigned. They are charged with the 
offense of violating provisions of Chapter 76 of the Session 
Laws of 1888, which is the general election lq,w. It is admitted 
that the general proceedings in holding the election were ac- 
cording to law. The charge made is that the defendants un- 
lawfully refused to take the ballot of one Norman Edmund 
Gedge. The admitted facts are that Mr. Qedge was duly' regis- 
tered as a voter in this precinct, and was entitled to vote there, 
unless the fact of his removal of residence from this precinct, 
and taking up a residence in an adjoining precinct "about ten 
days" previous to the election, properly barred him from cast- 
ing his vote there. The defendants, inspectors, declined.to per- 
mit Mr. Gedge to vote under the provisions of Section 32 of the 
Act, which reads: "Whenever any district shall be divided into 



THE KING V8. HOBRON. 153 

two or more precincts, separate lists of voters residing in each 
precinct shall be prepared from the register, and no elector 
shall be permitted to vote in any precinct other than that 
wherein he resides." 

The contention of the prosecution is that the construction 
giveii January 25, 1890, by the Justices of this Court, in reply 
to certain questions propounded to them by the Minister of the 
Interior, supported the right of Mr. Gedge to vote. We say in 
that opinion: "That election districts are defined in Section 13; 
they are 24 in number, and one Representative is allowed for 
each district, and can be voted for by only the voters of the 
particular district. But the Nobles, 24 in number, are not ap- 
portioned to be voted for singly by the voters of the respective 
election districts, but nine Nobles are to be voted for by each 
voter (who is qualified) on the Island of Oahu, and six by each 
voter on the Island of Hawaii, and so on throughout the group. 
For purpose, therefore, of voting for Nobles, the Island of Oahu 
is the 'district,' as is also the Island of Hawaii, etc. If all the vot- 
ers qualified to vote for Nobles can vote for the number of No- 
bles prescribed for the island on which the voter lives, it can 
make no difference in which 'election district' within the island 
or group of islands he may reside, and any change from one to 
another of these districts into which the island is divided can- 
not affect his right to vote for Nobles, provided he has resided 
on the particular island where he offers to vote for three months 
immediately preceding the election." 

In our view this opinion does not support the claim of the 
prosecution. It is to the efiect that a residence of three months 
in any part or parts of the island district is the residence re- 
quired for a man otherwise qualified to vote for Nobles, under 
which he may register. It does not touch the question of 
proper registry. The section of the law, then, on which the In- 
spectors based their actions, requires that he shall be a resi- 
dent in the district, or voting precinct in which he registers, 
and a resident of the precinct in which he votes. This would 
seem to be a needed law for the regulation of voting. The law 
provides for a voter's getting his name transferred from one 



154 JULY, 1890. 

registry to another upon his changing his residence. If he 
neglects to attend to this, it cannot be said that the law has 
disfranchised him, or if he changes his residence so shortly be- 
fore the date of an election that the transfer, which must be 
done at an advertised public meeting of the Inspectors, cannot 
be made, he disfranchises himself by his own act, as he would 
if he chose to make a journey abroad previous to an election. 

We consider that in refusing the vote of Mr. Gedge, the de- 
fendants followed the law, and we acquit them of the charge. 

A separate case is brought against the same defendants in 
respect to refusing the vote of Charles Lucas at the same elec- 
tion. This case depends on the construction of facts whether 
Mr. Lucas had a residence in the precinct at the date of the 
election. We subjoin the report of his testimony given in the 
Police Court and agreed to be taken here: — 

Mr. Lucas testified that he had been registered in this pre- 
cinct and had voted there , at the preceding election, and had 
not registered in any other precinct. **In January, 1890, 1 resided 
on School street, opposite Rice's barn; house belongs to me; I 
built it. In latter part of January, 1890, Dr. Brodie wanted to 
rent my house of my wife; she said yes; she and I settled on 
rent and closed the bargain. Brodie was to have the furniture. 
After he moved in, my wife and I stopped with him a week. 
When we rented to Brodie, we were stopping at Niu for a vaca- 
tion. After Brodie took the house we went back to Niu. The 
house at Niu belongs part to my wife and part to her grand- 
mother. Brodie took the house on School street on February 
1, for a year. I did not intend to give it up as a home — it is 
my home and permanent residence. The place at Niu is only 
a temporary residence; it is not fitt^ up for anything else. 
None of my property is mortgaged. My furniture is at School 
street house. On July 9, 1890, 1 offered to vote at Rice's barn. De- 
fendant Shaw said I could not vote because I lived at Niu; he 
had no choice in the matter, was very sorry but could not 
change the law. Hobron agreed with him. I said I did not 
care. I said nothing about my School street residence. I 
went away. About 3 p. m. some gentlemen told me I could 



THE KING V8. HOBRON. 155 

vote. I went back to the polls. Shaw again said he was sorry^ 
but I could not vote. A lot of people were standing around 
and they did most of the talking. I did not care much about 
it, and thought defendants supposed they were doing their 
duty. Gedge came with a Supreme Court decision and insisted 
on voting. I asked leave to vote under protest, but Shaw said he 
could not allow it, and read the law. I told him my house and 
residence and furniture were just across the street. I told him 
the election was for Noble for the Island of Oahu, not Repre- 
sentative. 

Cross-examined, — ^I didn't care anything about it when they 
refused my vote. I have not brought this prosecution and 
don't wish it. I rented my house to Brodie for a year and he 
has lived in it ever since, and I have lived at Niu ever since, 
except some visits to town. I lived six weeks at Palama while 
my wife was sick: not in District 2, Precinct 2. I intend to re- 
side at Niu till year is out, I will have to if Brodie keeps my 
house; there is no written agreement that he shall keep it. On 
July 9th it was my intention to reside at Niu for the rest of 
the year. I leased house and furniture to Brodie for the year. 

Re-direct. — When Brodie gives up my house, I don't think I 
shall return to it, but shall stay at Niu." 

Upon this testimony we hold that Mr. Lucas had given up 
residence in the precinct where his vote was refused, and ac- 
quit the defendants upon these charges also. 

F. M. Hatch and W. A. Whiting, for the Crown. 
W, 0. Smith, for defendants. 



1 



156 JULY, 1890. 



THE KING V8. CHUNG YOUNG, WONG KUI, LONG SEE 

and LOW BACK. 

Appeal from Police Justice of Honolulu. 

Hearing, July 26, 1890. Decision, August 22, 1890. 

JuDD, C.J., McCuLLY, Bickerton, Dole, JJ. 

The lioense for the Chinese Theatre contained a condition, ** There shall 
be no playing of musical instruments, beating of gongs and other 
noisy musical instruments later than 10 o'clock at nighf 

Held, that the Minister of the Interior had authority to insert conditions 
in the license, but they must be reasonable. That the condition was 
not reasonable. 

Opinion of the Court, by Bickerton, J. 

The defendants were charged in the Police Court of Honolulu 
on the 28th of May, 1890, as follows : ** Playing noisy instru- 
ments after 10 p. m., on May 26th, 1890, in Honolulu, contrary 
to the terms of their theatrical license, and contrary to Section 
98 of the Civil Code as amended." 

After a number of continuances, on June 9th, 1890, defend- 
ants' counsel filed the following : " It is admitted by defendants 
that they used noisy instruments in the Chinese Theatre during 
a theatrical exhibition on the evening of May 26th, 1890, after 
10 o'clock." 

June 12th, defendants were found guilty and were fined one 
dollar each and costs. Defendants then appealed to this Court 
on two points of law : First, " That said judgment should have 
been rendered in favor of defendants because the Minister of the 
Interior has no authority to issue any license for carrying on a 
theatrical exhibition subject to any conditions which are not 
authorized by the statutes of the Kingdom. Second, " That the 
conditions in defendants' license, for the breach whereof judg- 



THE KING V8. CHUNG YOUNG. 157 

ment was rendered against them, were contrary to Articles I., 
IX. and XIV, of the Constitution of the Kingdom." 

By the Court. 

Section 96, Compiled Laws, provides that '' the Minister of 
the Interior may license any theatre, circus * * * for such 
time, not exceeding one year, and upon such terms and condi- 
tions as he may think reasonable " * * * , Section 98 
provides the penalty for the violation of the terms and condi- 
tions of such license. 

The first license containing a condition in regard to musical 
instruments is dated May 22d, 1890. The conditions reads: 
*' Provided there shall be no playing of musical instruments, 
beating of gongs and other noisy musical instruments later than 
10 o'clock at night." The next license is dated May 26th, 1890, 
and contains the same condition, in the same words ; this is the 
license under which the defendants were charged and prosecuted. 
It is contended by counsel for defendant that this condition or 
restriction was unreasonable. It would seem from the papers 
before us that the Minister was of the same mind, for in the license 
dated June 27th, 1890, the condition reads : '^ Provided that 
there shall be no beating of gongs or playing upon noisy instru- 
ments later than 10 o'clock p. m., and that no musical instru- 
ments of any kind shall be played later than 11:30 p. m." June 
30th, this hour was changed to 11 o'clock p. m., and continues 
the same up to July 25th, the date of the last license before us. 

There is no doubt that the statute gives the Minister of the 
Interior authority to impose terms, restrictions and conditions 
in licenses for theatres, exhibitions, circuses and shows, but they 
must be reasonable, not restrictions that would so cripple an 
entertainment that it would cease to be what it was intended 
to be. For instance, it would be an unreasonable condition to 
make in a license, issued to an opera company performing here, 
that they should not use certain instruments in their or- 
chestra because they were noisy, or that the chorus should not 
sing after 10 o'clock, because they made more noise than a per- 
son singing a solo, notwithstanding the fact that the perfor- 



n 



158 JULY, 1890. 

raance might not be finished by that hour. And further, as in 
this case, to make it a condition that after 10 p. m. there should 
be no playing of musical instruments at all. That is the con- 
dition in the license dated May 26th, the one under which de- 
fendants are charged, and the only one that we have under con- 
sideration in this case. Ten o'clock p. m. is not an unseasonable 
hour, and perhaps 11 p. m. might be considered the same, to 
which a public entertainment might be extended. Theatrical 
performances and entertainments of that nature rarely termi- 
nate before 11 p. m. The law as regards licenses must apply 
equally to all classes of people, and the entertainments peculiar 
to any class or nationality, let it be a Chinese theatre, Italian 
opera, English opera, or dramatical entertainment. It would 
not be contended for one moment that the Minister has authority 
to make a condition in a license that the performance must be 
in any particular language. 

We are of the opinion that the condition in the license of 
May 26th, 1890, is unreasonable and unjust. Having come to 
this conclusion, it is not necessary to consider the second 
point certified up. 

The judgment of the Police Court is reversed, and the defend- 
ants discharged. 

W. R. Castle, for prosecution. 

P. Neumanuj for defendants. 



KAIAIKAWAHA vs. OKUU. 159 



J. N. KAIAIKAWAHA et al. vs, GEORGE OKUU. 

Appeal from McCully, J. 
Hearing, August 4, 1890. Decision, August 26, 1890. 

JUDD, C.J., McCULLY, BiCKERTON, DoLE, JJ. 

The plaintiff having attempted to set up an equitable defense in a suit at 
law brought by this defendant against him, was prevented from do- 
ing so by the ruling of the Court, and judgment was rendered against 
him. The defendant now pleads that judgment in bar. 

Held, that the judgment is not a bar to his action in equity, based on this 
equitable olaim. 

Opinion of the Court, by Bickerton, J. 

This matter comes here on an appeal from the decree of Mr. 
Justice McCully, overruling the plea in bar of defendant. 

Okuu, the defendant in this case, brought an action of re- 
plevin against Kaiaikawaha, which was tried at the April Term, 
1888. The defendant offered to set up a purely equitable de- 
fense, tending to show that a bill of sale of Ihe chattels in suit 
from defendant to plaintiff, absolute on its face, was in fact a 
mortgage. The Presiding Justice excluded the evidence in sup- 
port of the defense, and the verdict was for the plaintiff. Ex- 
ceptions were taken and heard in Banco at the July Term, 
1888, the Court holding that such evidence was rightly ex- 
cluded. Okuu V8. Kaiaikawaha, 7 Hawn., 311. 

The plaintiff (defendant in the former case) now brings an 
action in equity to set aside the same bill of sale and declare it 
to be a mortgage, and the defendant pleads in bar a judgment 
in the former case at law, whereby the title to the property and 
chattels, set forth in the plaintiff's bill, was adjudged upon in 
favor of this defendant, as also the matters and things alleged 
in the plaintiff^s bill. 



160 AUGUST, 1890. 

The question is, was this equitable claim adjudicated; was it 
heard in the caseofOfcuu vs. Kaiaikawaha? We find it was 
not; on the contrary it was excluded. The plaintiffs in this 
case attempted to avail themselves of their equities at law, but 
were prevented from so doing by the ruling of the Court; these 
plaintiffs were not seeking a remedy at law or electing to pro- 
ceed at law instead of equity; they were the defendants in the 
case at law, the now defendant was the then plaintiff. 

A plea of former judgment at law, to be a bar in an action in 
equity, must have been rendered by a Court of competent juris- 
diction, and upon a full and complete hearing of all the merits 
of the case. Story, Eq. PI., Sec. 780; 2 Am. Chan. Dig., 504; 
Herman on Estoppels, 252; Oallagher vs. Roberts, 1 Wash., C. C, 
320. 

Pleas in bar, based on a former judgment, are based on the 
principle that the Court will not hear what has been heard and 
decided before. 

A Court in equity will entertain a case where there has been 
a verdict and judgment, there being an equitable ground of 
defense, of which the defendant could not avail himself. 

In the case of Bell vs, Merrifield, 109 N. Y., 202, it was held 
^^that a valid judgment upon a question directly involved in a 
suit is conclusive evidence as to that question in any other suit 
between the same parties; but it must appear either by the rec- 
ord in the suit, or by extrinsic evidence, that the precise ques- 
tion was raised and determined in the former suit." 

The appeal is dismissed and the decree affirmed. 

TT. A. Whiting and Chas, Creighton, for plaintiffs. 

A, Rosa, for defendant. 



YUEN CHOCK vs. CHUNG HOY. 161 



YUEN CHOCK vs. CHUNG HOY. 

I 

Appeal prom Police Justice of Honolulu. 
Hearing, August 4, 1890. Decision, August 7, 1890. 

JUDD, C.J., McCULLY, BiCKERTON, DoLE, JJ. 

Section 953 of the Civil Code does not authorize the arrest of a fraudtdent 
debtor after judgment. 

Opinion op the Court, by Judd, C.J. 

On the 18th of April last the plaintiff obtained a judgment 
against the defendant in the Police Court of Honolulu for $220.30. 
The action was assumpsit to recover the amount of two promissory 
notes. The defendant had no counsel, and confessed judgment. 
On the 18th of July the plaintiff made a complaint under oath 
to the Police Justice that defendant seeks to evade the payment 
of the said debt by transferring and intending to transfer his 
property to certain other persons unknown to the deponent. 
The plaintiff tendered the statutory bond, which was approved. 
A warrant for the arrest and detention of the defendant was 
issued, and he was accordingly arrested and imprisoned. The 
next day the defendant's attorney moved the Police Court to 
dissolve the attachment and discharge him from custody on the 
ground that the warrant was issued without authority of law. 
The Police Justice granted the motion, and discharged the de- 
fendant, from which the plaintiff appealed to the Supreme 
Court in Banco upon the points of law involved. 

Section 953 of the Civil Code confers upon a Court of Record 

or a Police Court the authority to issue process for the arrest 

and detention of a fraudulent debtor. This statute affecting 

the liberty of the person should be construed strictly. Its plain 

intention is to secure the presence of a defendant in a civil 

action. It is ancillary to such a suit. The complaint must be 
11 



162 AUGUST, 1890. 

" verified by the oath of the plaintiff in a suit, or some person 
on his behalf." The complaint must allege that the defendant 
has contracted the debt in a fraudulent manner, or that he seeks 
to evade the payment of the debt, first, by secreting his pro- 
perty, second, by transferring or intending to transfer the same 
to any third party, third, or is about to remove the same out of 
the jurisdiction of such Court, foui^th, or is about to quit the 
Kingdom. The process issued arrests and detains the defendant 
" until he shall have entered into security with sufl&cient sureties 
to abide the result of such suit, and to pay the amount of such 
judgment as shall be rendered thereon." This language implies 
the pendency of a suit, and detains the defendant in custody in 
order that he may not make away with his property. But after 
judgment his property is subject to execution. The last para- 
graph of section 953, which provides that no process of con- 
straint shall be issued until the plaintiff files a bond to reim- 
burse defendant for damages and costs '' which he shall sustain 
in consequence of such arrest, in case the plaintiff shall fail to 
sustain such suit," has no meaning if the warrant of arrest 
issues after judgment, for in such case the plaintiff has already 
sustained his suit. The warrant of arrest, therefore, was not 
authorized by the statute. It is not necessary to consider the 
further point made by plaintiff's counsel, that the Police Court 
being of limited jurisdiction, has no power to discharge its owi\ 
writ, there being no especial authority in the statute for this. 
The defendant has been discharged from custody, and he is 
now at liberty. He is in no danger of being arrested again 
on the same ground. 

The appeal is dismissed. 

C. W. Ashford, for plaintiff. 

/. A. MagooUj for defendant. 



OAHU RAILWAY CO. vs. BROWN. 163 



OAHU RAILWAY CO. vs, C. A. BROWN, Tax Assessor. 

Submission Without Action. 

Hearing, August 4, 1890. Decision, August 22, 1890. 

JUDD, C.J., McCULLY, BiCKERTON, DoLE, JJ. 

The plaintiff company is oansidered to be a private and not a ** public** 
corporation. 

The provision of the tax statute, which makes '' public stocks and bonds" 
taxable as a species of personal property, does not, therefore, apply to 
the bonds of the plaintiff company, and they are excluded from the 
description of taxable property. 

Submission op Controversy. 

The Oahu Railway and Land Company, duly incorporated 
under the laws of the 'Hawaiian Islands, is the owner of a rail- 
way connecting Honolulu with Ewa, on the Island of Oahu. 
The said railway is in good order, thoroughly equipped and 
is in active operation. Besides the railway and its equipment, 
the said company owns certain other property consisting of 
lands and chattels. 

In order to build and equip its said railway, the company, as 
by its charter allowed, issued certain mortgage bonds of the 

total amount of $300,000; of these bonds, $260,000 were issued 

* 

on construction and equipment account, and said amount was 
actually used in such construction and equipment. The remain- 
ing $40,000 was used in the purchase and development of its 
other said property. Upon the issue of said bonds, the said 
company guaranteed them free of taxes; without such guaran- 
tee it might not have been possible to have sold the bonds and 
to have built the road. A form of said bond is hereto attached 
and made a part hereof. 

By the contract authorized by the law of 1888 (Chapter 62) 



1 



164 AUGUST, 1890. 

under which the said company was organized and has its exis- 
istence, " the property * * * of said company which 
shall be fairly necessary to the reasonable construction, mainte- 
nance and operation of said road is exempted from all taxes for 
twenty years" (see Section 17); $260,000 of said bonds cover 
such portion of its property. The remaining portion of the pro- 
perty of said company is liable for and is actually taxed. It is 
for the said remaining portion that $40^000 of said bonds were 
issued. 

Upon the foregoing facts it is claimed by said company that 
its bonds are not liable to taxation, because, 

1st. The 260,000 of the sum above mentioned cover property 
expressly exempted from taxation by law at the present time; 
and, 

2d. That the $40,000 of the sum aforesaid cover property al- 
ready taxed, and it would be double taxation to tax both the 
mortgage bond and property covered thereby. 

It it claimed by said tax assessor that said bonds are personal 
property subject to taxation by our laws. 

It is agreed by and between the parties hereto, that the case 
above set forth shall be submitted to the Supreme Court for it« 
decision, and that such decision shall be final and binding be- 
tween the parties hereto, and decisive as to the right to tax said 
railway bonds, and that if necessary a writ of prohibition may 
issue on such equipment, if favorable to the plaintiff, or, if in 
favor of the defendant, that the total issue of such bonds shall be 
assessed to plaintiff, or such proportion thereof as the Court 
shall hold liable to taxation. 

Opinion of the Coubt, by McCully, J. 

The bonds here under consideration can be taxed only if they 
are " public" bonds. The statute defining ** personal property," 
for the purpose of taxation, is Section 2 of Chapter 37 of the 
Acts of 1886. " Public stocks and bonds" are the only bonds 
included. This statute is an amendment of the Act of 1882, 
and the statute is an amendment of the law providing for tax- 
ation, as first enacted in the Civil Code of 1859. Section 483 



OAHU RAILWAY CO. vs. BROWN. 165 

provided that personal property be construed to include " all 
* * * moneys in hand, and moneys loaned, all mortgages, 
public stocks, stocks in corporations, and every species of pro- 
perty not included in real estate." The amendment of 1882, 
and the amendment of 1886, make public stocks and bonds tax- 
able, and omit and so exclude from taxation the other enumer- 
ated descriptions of personal property, and omit the general 
clause of ** every species of property," etc. This interpretation 
was made in McBryde vs. Kala, decided by Chief Justice Judd, 
6 Hawn., 529. 

Are the bonds of the Oahu Railway and Land Company 
public bonds? 

We take the word " public" to mean of or relating to the 
Government. There is another use of the word, the popular 
use, by which is intended what is of large or general character. 
There are public places of amusement, open to the public on 
payment of the admission price. Says Chancellor Kent, Comm. 
2, p. 276: ** Every charity which is extensive in its object may 
in a certain sense be called a public charity. A charity may be 
public though administered by a private corporation. To hold 
a corporation to be public because the charity was public, would 
be to confound the popular with the strictly legal sense of the 
terms, and to jar with the whole current of decisions since the 
time of Lord Coke." In Hall vs. County ComWs of MiddleseZy 
10 Allen, 100, the Court say: Since the Legislature has not 
defined public stocks and securities, the Court must ascertain, 
as best as they can, what are such as cases arise. And found 
that bonds issued under special legislative authority by a state 
or city for aiding in the constructing of railroads, are public 
stocks. 

Upon referring to the statute, which is Chapter 62 of the laws 
of 1888, we find that the Minister of the Interior is authorized 
to contract with B. F. Dillingham, his associates, etc., or such 
corporation as shall be formed under the general lawe of the 
Kingdom, or failing this corporation with any Hawaiian cor- 
poration for the construction of steam railroads on the island of 
Oahu, and to confer such rights of way and other privileges. 



166 AUGUST, 1890. 

etc., as are provided for by certain railway acts of 1878 and 
1880. Under this Act the Minister has contracted with this 
corporation, which is organized to build railways, and improve 
and deal in land on Oahu. Section 18 prohibits the Minister 
from contracting to pledge the Government to the payment of 
any subsidy, but under section 17 the contract may remit for 
twenty years taxes on the railroad property of the company. 
The company has issued these bonds secured by a mortgage on 
its railroad property. The Government ha^ not guaranteed the 
payment of principal or interest. 

We do not regard the exemption, claimed by the corporation, 
to be supported by the provision of the statute authorizing an 
exemption of its property from taxation; for the debts owing by 
corporations are not the property of the corporation, but of its 
creditors. State Tax on Foreign-held Bonds, 14 Wall., 300. On 
the other hand, it is contended on behalf of the Tax Assessor, 
that these bonds may be considered as contracts, and so be tax- 
able, contracts being enumerated as taxable personal property. 

This construction appears to us to be a forced one, and npt 
supported by rules of construction. The instrument has all the 
forms and characteristics of a bond. It is entitled a mortgage 
bond. It is payable to bearer, and furnished with a series of 
coupons, for the semi-annual interest, payable to bearer. In the 
sense claimed, every species of indebtedness, such as notesy 
mortgages, could be characterized as contracts, and taxed al- 
though the statutes exempt debts and evidences of indebtedness. 

It was further submitted that the powers vested in this cor- 
poration, to condemn private property for its uses, endue it with 
a public character. This is an extension of the law of eminent 
domain. In a sense of the word, it is in aid of a public pur- 
pose. It fails, however, to remove the property of the company 
from the class of property held in private ownership, viz., the 
ownership of the stockholders, and this obvious result may dis- 
tinguish the private character of the property, and mortgages 
and bonds of such a corporation, from those which are public in 
the legal sense. Instances of public property which might, if 
so constituted, have been private, although for public, that is, 



OAHU RAILWAY CO. vs. BROWN. 167 

general uses, are the water works system of Honolulu, and its 
electric light system. 

With our view that the question is determined by the deter- 
mination that these bonds are not contracts, and are not public 
bonds, it will be unnecessary to discuss some other matters pre- 
sented in the submission. Our judgment is in favor of the Rail- 
way and Land Company. 

Qualified Opinion of Dole, J. 

I agree with the general conclusions of the foregoing opinion, 
but am not ready to discuss the dictum, that " the exemption 
claimed by the corporation is not supported by the provision of 
the statute authorizing an exemption of its property from tax- 
ation." 

As the issue is disposed of on other points, it is unnecessary to 
go into this particular question, but it might well be argued 
that a tax upon bonds, whereby funds are raised for the con- 
struction, maintenance or operation of the railroad of the com- 
pany, would be inconsistent with a statutory exemption from 
taxes upon any property, " fairly necessary ijo the reasonable 
construction, maintenance and operation" of such railroad. 

W. R, Castle, for the Company. 

Attorney-General Peterson and W. A, Whiting, for the Assessor. 



168 AUGUST, 1890. 



C. E. WILLIAMS V8, THE PANTHEON STABLES. 

Exceptions. 
Hearing, August 4, 1890. Decision, September 9, 1890. 

JuDD, C.J., McCuLLY and Bickerton, JJ. Dole J., Dissenting. 

The defendants, livery stable proprietors, owned several hack carriages. 
Their mode of business was to let or give them to be plied as hacks to 
drivers for whom they procured driver's licenses. The drivers paid 
the defendants $30 per week for a hack with two horses, maintained 
by the defendants and running from their stand. The drivers sought 
business and took for their own benefit the proceeds above the re- 
served receipts. The defendants exercised the right to discharge or 
temporarily suspend a driver for misconduct. 

Held, that these circumstances and the statute, Chapter 27 of the Laws 
of 1884, constituted the driver a servant of the defendants, rendering 
them liable for damage resulting from collision. 

Opinion of the Court, by McCully, J. 

This was an action of trespass on the case, arising out of a 
collision of horses, in which the plaintiff's horse received a fatal 
injury. It was tried before Bickerton, J., without a jury, who 
ordered judgment for the plaintiff. The defendant took the 
following exceptions, viz: 

1. To the finding that Frank Lillis, the driver of the express 
(hack) which collided with the plaintiff's team, was defend- 
ant's servant. 

2. To the refusal of the Trial Justice to find that the plaint- 
iff was guilty of contributory negligence in driving without 
lights. 

3. That the damages are excessive. 

The evidence as taken by the court stenographer is appended 
to the Bill of Exceptions; such parts of it as are necessary will 
be found in, the opinion. 



WILLIAMS V8, PANTHEON STABLES. 169 

The defendants are D. H. Davis and H. R. Macfarlane, doing 
a livery and hack business as The Pantheon Stables. They 
have several hacks, for each of which they take a license and 
pay a fee to the Government. This is distinct from the license 
paid for their general livery business. The hacks are num- 
bered and the license applies to the hack by its number. The 
drivers are individually licensed by numbered licenses as driv- 
ers. 

Frank Lillis, who drove the hack in the collision, had the 
use of a hack with two horses of the defendant at -tSO per week. 
The carriage and horses were maintained and stabled by the de- 
fendant. The driver took them out whenever he pleased and 
plied them as a public hackman, getting what fares he could. 
His remuneration would be what he made above the $30 per 
week. He was licensed under the following request from the 
defendant, addressed to the Inspector of Drivers and Hacks: 
"Please give Frank Lillis license for driving No. 49." This is 
done by the provisions of Chapter 27 of the Acts of 1884, viz., 
**Any person or firm having one or more licensed vehicles may 
make application to the Marshal or his deputy for a certificate 
to enable a person to obtain a license to drive; and the Marshal or 
his deputy, on being satisfied that the person recommended by 
the applicant is a competent driver, shall grant him a certificate 
to that effect, upon presentation of which to the Minister of the 
Interior the person applying shall receive a license, which license 
shall be used only and be valid so long as the person receiving the 
same shall remain in the employ of and drive for the person 
or persons making the application for such license; the fee for 
which shall be the sum of one dollar and which license shall 
remain in force for one year." • 

The stables did not prescribe the hours or direct the efforts 
of the drivers in obtaining business. It maintained a stand 
where hacks in waiting might stand, and a telephone and ser- 
vice of it through which their hacks might receive orders. 
There were more applicants for the position of hack drivers 
than they had carriages to let. "We have quite a number of 
applications; we could not accept them all as we have not hacks 



170 AUGUST, 1890. 

enough. We have applications that we turn away frequently, 
because we know they are unfit." (Testimony of Davis, deft.) 
The stables claimed the right to take away the carriage of any 
driver who was drinking or intoxicated, altogether or for such 
time' as it judged fit. "If any of our hack-drivers misbehave 
sufiiciently to warrant it, I discharge them." (Ihid.) This 
right had been exercised towards Frank Lillis on the day of the 
collision. His hack had been taken away from him and put 
in the stable on account of his intoxication. About one or 
two o'clock he asked Mr. Davis for it, who answered: "No, you 
can't have your hack." "I saw he had been drinking something. 
'Well,' he says, *I have got a load at the hotel at four o'clock,' 
and I said, 'you go honie and sleep and come back at four 
o'clock and you can have your hack.' " (Testimony of Davis.) 
The foreman of the stables, Cavanaugh, testifies that he had or- 
ders to take away the team of any one drunk, and that he took 
away Lillis' this day and restored it to him about four o'clock 
p. M. 

Under these circumstances was Lillis the servant of defend- 
ant? A case in point is that of Powlea vs. Hidety 6 Ellis & 
Blackburn, 208. The defendant was the owner of cabs in Lon- 
don. Drivers, who by Act of Parliament must be licensed, 
paid defendant a sum each day for the use of the' cab and two 
horses for fifteen hours, the driver depositing his license with 
the owner of the cab. Every cab was plainly marked with the 
name of the owner, and was licensed. 

It was held that the defendant owner was liable as for the 
act of his servant for the value of baggage lost through the neg- 
ligence of the driver. Lord Chief Justice Campbell said that if 
the contention of the defendant was right, that in point of law 
the cab and horses were let to hire to the driver, and that the 
driver became the bailee, he could not render the defendant lia- 
ble; but, "looking to the position of the proprietor and the 
driver of the cab under the circumstances proved, and to the 
Acts of Parliament which regulate their respective duties, we 
are of opinion that the driver is to be considered the servant or 
agent of the proprietor. There can be no doubt that this would 



WILLIAMS V8, PANTHEON STABLES. 171 

be BO if the driver were engaged at fixed wages, accounting to 
the proprietor for all the earnings of the cab. But must not the 
actual arrangement between them be equally considered a mode 
by which the proprietor receives what may be estimated as the 
average earnings of the cab, minus a reasonable compensation 
for his labor?" 

The circumstances of this case, and the law, bring the case at 
bar within this reaaoning. The defendants had "recommended" 
Lillis to be licensed as a driver of one of their cabs, and his 
license was valid only ao long as he drove for them. They had 
selected him out of a large number making application. They 
had the power to discharge him for misconduct, or to suspend 
him for any time. His hack proceeded from the defendants' 
stand, and bore the number of one of their licenses. He 
was not directed by the defendants as to the hours of his service, 
or provided with business by them, the terms of his service im- 
posing diligence on him, and avoiding for the defendants the 
risk of a dishonest accounting. For illustration, let it be that 
a person had hired a carriage and horses of the defendants for 
a hack business of his own, procuring a license for the hack, 
and for himself as a driver. Doubtless the hirer would be the 
bailee of the property, and the defendants would not be liable 
for his contracts or torts. Such a case would be materially differ- 
ent from this under consideration, and the difiference would con- 
stitute the one person a servant and the other a bailee. 

This conclusion may also be considered a statute interpreta- 
tion or condition, from the words " which license shall be used 
only and be valid so long as the person receiving the same shall 
remain in the employ of and drive for the person or persons mak- 
ing application for such license/' and our decision might be 
based on this solely. Any other conclusion would nullify the 
apparent purpose and objects of the law requiring licenses for 
hacks and licenses for drivers, which are to place them under 
police control, and to identify the carriages and drivers. 

The finding that the plaintiff was not guilty of contributory 
negligence in driving without lights in this particular case, and 
the determination of the value of the plaintiffs horse, are upon 



172 AUGUST, 1890. 

matters of fact. Examining the evidence, we find no reason 
for setting them aside; on the contrary, they are well supported. 
The exceptions are overruled. 

Dissenting Opinion of Dole, J. 

It is clear to me that in the authorities referred to in the 
opinion of the Court, the relation of master and servant was 
considered to exist between the owners and drivers of the Lon- 
don cabs, purely by virtue of the English statutes. " I agree 
that, independently of the Acts of Parliament relating to this 
subjeoti the relation between them would be that of bailor and 
bailee, not that of master and servant. * * * But I think 
that the provisions of the Acts of Parliament alter what would 
otherwise be the relation of the proprietor and the driver, and for 
the protection of the public produce the result that, as regards 
mischief done by the driver, who is selected by the proprietor, 
the relation of master and servant so far exists as to render the 
proprietor responsible for the acts of the driver." Venables vs. 
Smith, 2 L. R. Q. B., 282. This is supported by Powles vs. Hider, 
6 E. & B., 208, the authority quoted in the opinion of the Court, 
and by Fowler vs. Lock, 7 L. R. C. P., 272. The latter authority, 
indeed, which was an action brought by the driver of a cab 
against the owner for damages for furnishing with the cab an 
unruly horse which injured the plaintiff, goes further and some- 
what weakens the force of Powles vs. Hider, The majority of 
the Court in Fowler vs. Lock decided that as between the owner 
and driver of the cab, the relation was not that of master and ser- 
vant, but that of bailor and bailee; and Judge Wilde, who 
dissented from his associates, said: "In deciding this case 
against the defendant, we should seem directly to overrule the 
reasoning of the Court of Queen's Bench," (in Powles vs. 
Hider.) 

We have then to find in our statutes enactments which, like 
the English Acts, create the relation of master and servant be- 
tween a hack-owner and driver, as regards mischief done by the 
driver to the public in the prosecution of his work as driver, 
before we can hold the defendant in this cause responsible to 



WILLIAMS V8. PANTHEON STABLES. 173 

the plaintiff for the injury complained of. As our law library 
does not contain the English laws referred to, we are left to find 
them BO far as is possible in the authorities quoted. 

Statute 1 and 2, W. IV., c. 22, § 6, prohibits any person from 
keeping, using or letting to hire any hackney carriage within 
the metropolis without a license. Section 20 id., requires that 
a plate shall be affixed to the carriage on '^ which there shall be 
painted in letters and figures of black upon a white ground the 
christian name and surname of the proprietor, or of one of the 
proprietors of such hackney carriage." 

Statute 6 and 7, Vict., c. 86, § 10, prohibits any person from 
acting as driver of a hackney carriage without a license. Section 
21 Id. requires that before the proprietor of a hackney carriage 
permits a licensed driver to take it out, he " shall require to be 
delivered to him, and shall retain in his possession, the license 
of such driver or conductor while such driver or conductor 
shall remain in his service.'* Section 28 Id. makes the proprie- 
tor liable to a penalty for the misconduct of the driver; and 
Section 35 Id, compels the proprietor, when required, to produce 
the driver, and on failure to do so makes him liable to pay — 
exactly what does not appear. Sections 23, 24 and 27 Id, are 
referred to in Powles vs, Hider as further authority for the posi- 
tion taken in that cause, but their substance is not given. 

The Hawaiian statutes forbid the owner of a vehicle " to hire 
or allow the same to ply for hire within the District of Hono- 
lulu" without a hack license, and makes anyone in charge of 
the vehicle at the time the offense is committed liable as owner. 
They also require that all drivers of licensed hacks shall be 
themselves licensed; that the owner of such licensed hack '^ shall 
continually exhibit in a conspicuous place- (presumably on the 
hack itself) the number of the license;" and provide for the 
issue of special drivers' licenses upon the application of hack 
ownerSj which " shall be used only and be valid so long as the 
person receiving the same shall remain in the employ of and 
drive for the person or persons making the application" therefor. 

The hack regulations enacted by the Minister of the Interior, 
which by the statute have the force of law, contain nothing 



• 1 



174 AUGUST, 1890. 

that throws any light on this question, except, perhaps, the 28th 
section, which is as follows: ** Any licensed vehicle, horse or 
harness found in service at any time in an unsuitable or unsafe 
condition for performing the duties of common carrier, will ren- 
der the owner or driver, or both, liable to arrest and prosecu- 
tion." 

There is nothing in the Hawaiian statutes which corresponds 
to the English requirement that the owner of the hack shall ob- 
tain and hold the license of anyone driving the same, or to the 
one which makes the owner liable to a penalty for the miscon- 
duct of the driver, or to the one which compels the owner, when 
required, to produce the driver or become himself liable; but 
perhaps the most important difference of all is the absence in 
the Hawaiian law of the English regulation that every hack 
proprietor shall affix, with great distinctness, his "christian 
name and surname" to the hack. Our regulations merely pro- 
vide that the number of the hack license shall be exhibited on 
a conspicuous part thereof, which circumstance cannot, under 
the reasoning of Powles vs, Hider^ answer for the proprietor's 
" christian name and surname." That authority says, " the cab 
in question when hired by the plaintiff had upon it a plate with 
the name and surname of the defendant as the proprietor. The 
proprietor who applies for and accepts a license to which this 
condition is annexed, and employs his cab under it, must be 
considered to hold himself out to the world as the proprietor, 
and he must incur the liabilities of proprietor to all who use the 
cab with the authority of the driver in the ordinary course of 
dealing. If the proprietor does not drive it himself, he declares 
that the driver is his servant." This is an argument which can- 
not be made where merely a number is affixed to the hack. 
This circumstance of the requirement that the owner's name 
shall be placed on the hack appears to be the leading feature of 
the English statutes bearing on the question, and in the author- 
ities referred to is the main ground upon which the decisions 
were reached. 

Our statute, on the other hand, besides the absence of the 
English provisions which support the theory that the driver is 



WILLIAMS V8. PANTHEON STABLES. 175 

the servant of the owner under the circumstances given, dis- 
tinctly enacts, as noticed above, that anyone in charge of an un- 
licensed vehicle plying for hire, which of course means the 
driver, is to be regarded as the owner for the purposes of the 
law and is made liable for the penalty; and the hack regula- 
tions make the driver equally liable with the owner for using 
a licensed hack in an unsafe condition. 

It is true that our statute, providing for the issue of special 
licenses to drivers upon the application of hack owners, refers to 
such drivers as being in the employ of and driving for the 
owners; but these words standing alone, without other enact- 
ments implying the relationship of master and servant, are not 
sufficient, in my mind, to support the theory of law claimed by 
the plaintiff, especially as they are only used incidentally to 
limit the extent of such licenses. 

It therefore seems to me that the authorities relied on in the 
opinion of the Court are not applicable to the issue in this case 
under our statutes, which diverge so radically from the English 
statutes upon those very points under which the decisions refer- 
red to were rendered. 

For the foregoing reasons I am unable to agree with the 
decision of the majority of the Court, and am of the opinion 
that the judgment appealed from should be reversed. 

A. P, Peterson, for plaintiff. 

F, M, Hatch, for defendant. 



n 



176 AUGUST, 1890. 



P. J. HILLS vs. J. E. BROWN. 

* 

Appeal prom Order of Bickerton, J. 

Hearing, August 4, 1890. Decision, September 10, 1890. 

JuDD, C.J., McCuLLY, Bickerton, Dole, JJ. 

The defendant, to the action on his promissory note, pleaded in recoup- 
ment a loss in certain articles purchased of the plaintiff, for which 
this note was part payment; to which the plaintiiTin repUcation plead- 
ed that in a prior suit it had been adjudged that this defendant could 
not recover therefor. 

Held, that the doctrine of ** res judicata " was applicable, and the plea in 
bar was sustained. 

Opinion of the Court, by McCully, J. 

This is an action of assumpsit on a promissory note, part of 
the consideration in the sale of a plant and material for the 
manufacture of aerated waters. 

The defendant pleaded in recoupment a failure in quantity of 
certain material and a failure in quality as to some other, to 
which defense the plaintiff made replication, setting up in bar 
to the defendant's plea the judgment of the Court in a previous 
suit. The Court below sustained the plea in bar, to which de- 
fendant excepted. 

We are referred by the bill of exceptions to the proceedings in 
the previous suit of Brown vs. HUla. The plaintiff therein 
claimed, inter alia, that he purchased certain articles and com- 
modities used in and necessary for the manufacture and carry- 
ing on of the said business (of making aerated waters) as set 
out in a certain inventory furnished by the defendant, among 
which there were, to wit, 800 dozen bottles, valued and pur- 
chased at the price of six hundred dollars, also certain essences 
valued in the said inventory at four hundred and fifty dollars. 



HILLS vs, BROWN. 177 

It was alleged in the complaint that the bottles fell short five 
hundred dozen, and that the essences were spoiled and unfit to 
be used, except to the extent of $95.78 in value. 

The case was tried before the late Mr. Justice Preston, jury 
waived. The learned Justice ordered judgment to be entered 
for the defendant Hills, basing it upon two grounds, first, that 
the evidence showed that the sale was made to plaintiff Brown 
by Hills and Nuu Vahine, who was non-joined in the action, 
and secondly, because the allegation of a sale by inventory speci- 
fying the separate value of the items was not supported, the 
proof being of a bill of sale in which there is some enumeration 
of the items sold, but only a lump valuation for them and the 
goodwill of the business, including a covenant not to engage 
again in such a business in Honolulu. 

The Court said : ** There is no evidence to support the allega- 
tion of a sale of the essences, etc., for $450. The sale was of the 
goodwill and stock for $3,000, and it cannot be maintained that 
any particular item was sold at a specific price." 

The defendant now offers to show a sale by inventory of 
articles and prices, and the losses in respect to two items, which 
was one of the issues decided before , that is, had become a res 
judicata. U, S. vs, Leffler, 11 Peters, 101. "If there be any 
one principle of law settled beyond question, it is this : that 
whensoever a cause of action in the language of the law transit 
in rem judicatanij and the judgment thereon remains in full 
force,* unreversed, the original cause of action is merged and gone 
forever." 

The application of the doctrine to this case is not afiected by 
the fact that the Court found that there was a non-joinder of 
defendants, it having distinctly adjudged upon the issue as if 
the proper parties had been joined. 

The plaintiff's plea in bar is sustained. 

Cedl Brown, for plaintiff. 

Paul Neumann^ for defendant. 
12 



178 OCTOBER, 1890. 



T. MAY et al. vs. ALFRED WILLIS, Bishop of Honolulu. 

Mandamus. 

Hearing, October 20, 1890. Decision, October 28, 1890. 

JuDD, C.J., McCuLLY, and Dole, JJ. Bickerton, J. did not sit. 

The Charter of Inoorporation of .the "Anglican Chnrch in Hawaii^' con- 
tained the following section : *'The tmstees shall be presided over by 
the Bishop or bis commissary, wbo may or may not be one of the 
tmstees; provided, however, that in case of a vacancy of the See, or if 
there be no commissary especially authorized in this behalf, the 
Archdeacon may preside; and if there be no Archdeacon, the Senior 
Priest; and if there be no Priest, the trustees shall appoint their own 
president, and it shall be the duty of the said president to call a 
meeting on receiving a written request so to do from one third of the 
whole body." 

Held, this section means that the presiding officer of the corporation 
for the time being, whether he is the Bishop, or his commissary, or 
' the Archdeacon, or the Senior Priest, or the appointee of the trustees, 
is subject to the requirement of calling meetings at the written re- 
quest of one-third of the members of the corporation. The calling 
of a meeting is a ministerial act and the presiding officer has no dis- 
cretion in the matter, but must call the meeting upon receiving a le- 
gal request so to do, and not look to the object of the proposed meet- 
ing. 

Opinion op the Court, by Dole, J. 

The petitioners are members of a corporation entitled "The 
Trustees of the Anglican Church in Hawaii," chartered by the 
Hawaiian Government. The respondent is the president of the 
corporation. The petitioners complain that the respondent has 
refused their written request that he would "call a meeting of 
the corporation in order that said corporation might consider, 
and if it should be deemed desirable and proper, decide upon 
the advisability of removing a building on said premises (the 
cathedral grounds near Emma street, in Honolulu), at present 



MAY V8, WILLIS. 179 

in close proximity to the church building in course of con- 
struction for the Chinese congregation," giving as his reason 
for declining such request, "that the purpose for which the 
meeting was desired did not fall within the functions of said 
body." The complaint further alleges that the respondent "as 
president of the corporation is authorized and required by the 
charter of said corporation to call a meeting of said corporation 
upon receiving a written request so to do from one-third of the 
whole body;" and that such refusal "is without warrant of law, 
and wrongfully deprives the complainants, as members of the 
said corporation, of the opportunity to perform the duties en- 
trusted to them." 

An alternative writ was issued against the respondent and he 
filed his answer, admitting the request by the petitioners that 
he would call a meeting of the corporation, and his refusal to 
accede to the same for reasons given, and that the petitioners 
form more than one-third of the corporation. The answer "de- 
nies that he, as Bishop of Honolulu, is authorized and required 
by the charter to call a meeting of said corporation upon re- 
ceiving a written request to do so from one-third of the whole 
body," and denies also "that said refusal is without warrant of 
law, and wrongfully deprives complainants, as members of said 
corporation, of the opportunity to perform the duties entrusted 
to them." 

The charter of incorporation contains the following section : 
"The trustees shall be presided over by the Bishop or his com- 
missary, who may or may not be one of the trustees; provided, 
however, that in case of a vacancy of the See, or if there be no 
commissary specially authorized in this behalf, the Archdeacon 
may preside; and if there be no Archdeacon, the Senior Priest; 
and if there be no Priest, the trustees shall appoint their own 
president, and it shall be the duty of the said president to call 
a meeting on receiving a written request so to do from one- 
third of the whole body." 

The respondent, at the hearing as well as in his answer, 
claimed that this section applies only to the emergency of a va- 
cancy in the See, when the trustees are authorized to appoint 



180 OCTOBER, 1890. 

their own president, whose duty it shall be to call meetings on 
the written request of a third of the corporation. We regard 
this as a forced construction of the sentence. The obvious 
meaning is that the presiding officer of the corporation for the 
time being, whether he is the Bishop, or his commissary, or the 
Archdeacon, or the Senior Priest, or the appointee of the trus- 
tees, is subject to the requirement of calling meetings at the 
written request of one- third of the members of the corporation. 
The proviso is very evidently parenthetical. Moreover, the 
construction claimed by the respondent would practically de- 
stroy the power given to one-third of the members of the 
corporation of calling meetings, for the contingency provided 
for when the corporation shall be without a bishop, commis- 
sary, archdeacon or priest is so remote that a right based upon 
it would be ordinarily of very little account. Nor is it con- 
ceivable why a distinction should be made in the charter be- 
tween one kind of president and another as to their powers and 
duties of calling meetings. The respondent, however, accounts 
for this distinction upon the basis of a provision of the by-laws, 
whereby the power of calling special meetings is given only to 
the Bishop and his representativeSy and it thereby became 
necessary to provide for special meetings in the contingency of 
the appointment of a lay president, Tyho has no power given 
him by the by-laws to call special meetings. The argument 
has some plausibility, but less so to us than the counter argu- 
ment that the section was framed to provide generally for call- 
ing special meetings on the motion of a portion of the members 
of the corporation, in addition to the right given to the Bishop 
and his representatives by the by-laws. If there was no pro- 
vision for calling special meetings, the power would be inherent 
in a majority of the trustees; and the enactment in this charter, 
giving the power to one-third of the corporation, is a provision 
common in some similar form to corporations generally. 

There is still another point in favor of our construction of 
this section of the charter, which has great force to our minds; 
and this is the construction which the Diocesan Synod, which 
is termed by the respondent the legislative body of the corpora- 



MAY V8. WILLIS. 181 

lion, has adopted, as it appears to us, in their ^^Instraetions to 
Trustees," adopted in 1889, which we find in the proceedings of 
the first session of the Third Diocesan Synod of the Anglican 
Church in Hawaii. The "instruction" we refer to is as follows: 
"Whereas, it is laid down in the charter that no conveyance or 
lease of real estate shall be made except at a meeting specially 
called for the purpose of deliberating upon the advisability of 
such sale or lease: It be our instructions to the trustees that 
such a special meeting be called by the .president, and that a 
full week be allowed to intervene between the serving of the 
notice of such meeting upon all members of the board 
resident in the diocese and the day appointed for the holding 
of said meeting." This resolution certainly recognizes in the 
trustees the power of calling a special meeting through the 
president, and requests them that a special meeting be so 
called. 

The respondent contends as a second ground why a per- 
emptory writ should not issue, that although the charter 
may authorize a third of the corporation to oblige their presi- 
dent to call a meeting, it does not give them the right to qblige 
him to call a meeting for a particular purpose, as in this case. 
We have only to say on this point, that regular meetings of 
corporations are generally established by the by-laws, which 
are sufficient notice to all concerned of the time of holding 
them; the meetings, referred to in the section of the charter 
under consideration, belong to that class of corporation meet- 
ings generally known as special meetings, and it is a recog- 
nized rule in the law of corporations that the notice calling 
special meetings shall specify the object of the meeting. 

The respondent oflFers a further ground against the issuing of 
a peremptory writ, which is substantially the reason given by 
him why he did not accede to the request to call a special 
meeting, as set forth in the complaint and admitted by him in 
the. answer, i. e., "that the purpose for which the meeting was 
desired did not fall within the functions of" the corporation. 
He has made an elaborate and learned argument upon this 
point, claiming, among other things, that the provision of the 



1 



182 OCTOBER, 1890. 

charter which empowers the corporation to hold property, and 
directs that such property "shall be faithfully applied to the 
purpose and use of establishing and maintaining the Church of 
the Anglican Communion within the Kingdom of the Hawaiian 
Islands, according to the doctrines of the Church of England," 
etc., requires that the business of the corporation relating to its 
property shall be conducted according to the rules and princi- 
ples of the Church of England relating to such matters of busi- 
ness, including within the meaning of the word "doctrines" the 
"entire body of principles by which the society is governed, as 
well with regard to the administration of its temporal concerns 
a0 to its articles of belief, its ministry, its ordinances, or its 
terms of communion." The respondent further contends in 
support of this point, that the proposed action is inconsistent 
with the regulations established by the Synod, to which the 
trustees are subject. Happily, the law applicable to the case 
makes it unnecessary for us to consider these points. 

The decisive question in this contention is whether this offi- 
cial act of calling a meeting upon the written request of a third 
of the corporation is or is not a matter of discretion with the presi- 
dent of the corporation. We must find the answer to this ques- 
tion in the words themselves: "It shall be the duty of the said 
president to call a meeting on receiving a written request to do so 
from one-third of the whole body." These words are imperative; 
there are no other words to soften or modify them. We find no en- 
actment of the Synod or rule of the Church of England which 
gives him such power as would qualify this enactment of the 
charter. The case of Boyd vs. Phillpotts, 4 L. R. Adm. & Eccl., 
297, appears to deny to a bishop in England the extended 
powers claimed by respondent. We see no room for argument 
against our view on this point. The words need no construc- 
tion, for they explain themselves beyond a doubt. The act, 
therefore, of calling a meeting under the circumstances is a 
ministerial or executive act, and is in no degree a judicial one; 
the officer has no discretion in the matter, but must call a 
meeting upon receiving a legal request so to do. This being 
the case it was not for the respondent to look to the object of 



MAY VB. WILLIS. 183 

the proposed meeting, and, because he considered it illegal, to 
refuse to call it; the charter places no such responsibility 
upon him, and gives him no such discretion in the matter. 
The act of calling a meeting under such circumstances being 
purely a ministerial act, the president in calling it could not be 
regarded as having committed himself to any particular views 
relating to the object of the meeting, but would be as free at 
such meeting as any one else to combat or support any resolu- 
tions offered. 

Neither is it for the Court to consider the object of the pro- 
posed meeting, for, having decided that the act in question is a 
ministerial one, all questions relating to the proposed business 
are foreign to the issue before this Court, which is without juris- 
diction in the private afiairs of the corporation, until its reme- 
dial interference is applied for from the standpoint of legal 
rights or obligations, to compel or prevent acts necessary or in- 
jurious to such legal rights and obligations. 

The respondent, in a second brief filed after the trial, raises a 
point of law in the nature of a demurrer to the petition, to the 
effect that "if the corporation has been debarred of any inherent 
right or privilege it would rest with the corporation to com- 
plain," and not the petitioners, who are a small part of the cor- 
poration. This point is rather late in the case, and the peti- 
tioners have had no opportunity to meet it. We notice in this 
connection that it is not the corporation, but the petitioners, 
who, as a third of the corporation, have been debarred of a 
right which is affirmatively given to them by the charter. 

A peremptory writ of mandamus may issue to the respond- 
ent, commanding him to call a meeting of the trustees of the 
Anglican Church in Hawaii, a corporation, forthwith, for the 
consideration of the advisability of removing the building in 
the cathedral precincts of the said corporation, at present in 
close proximity to the church building in course of construc- 
tion for the Chinese congregation; and that respondent pay the 
costs of these proceedings. 

F. M. Hatchy for petitioners. 

Respondent, in person. 



1 



184 OCTOBER, 1890. 



SU WAI vs. SOPER, 

Appeal from Order of Dole, J. 

Hearing, October 20, 1890. Decision, November 4, 1890. 

I 

JuDD, C.J., McCuLLY, Btckerton, Dole, JJ. 

A motion to re-open a judgment of non-suit, made at the next term, is too 
late. The power of the Court over its judgments ceases upon the final 
adjournment of th^ term in which they are rendered. 

Decision of Dole, J., Appealed From. 

A judgment of non-suit was entered in this cause in the July 
Term, by order of the Court, under Section 1163 of the Civil 
Code. 

After the term had expired by adjournment sine die, the 
plaintiff filed his motion that the judgment be rescinded, with 
hi^ affidavit explaining and justifying his non-appearance. 

The explanation furnished by the affidavit may absolve the 
plaintiff from fault, but the motion should have been made 
before the end of the term. We have no statute conferring 
power upon Courts to vacate judgments except in the case of 
judgments by default. By the principles of the common law, 
the power of a Court over its judgments ceases upon the final 
adjournment of the term in which they are rendered. 

The motion is therefore overruled. 

Decision of the Full Court. 

This matter having been submitted to us, we hereby affirm 
and adopt the decision and judgment of Mr. Justice Dole, 
appealed from. 

/. if. Davidson, for plaintifi*. 

C. W. Ashford, for defendant. 



THE KING VB, SING FOOK. 186 



THE KING vs, SIN FOOK. 

EXCE'.PTIONS FROM FoURTH CiRCITIT CoURT. 

Hearing, October 20, 1890. Decision, November 25, 1890. 

JUDD, C.J., McCULLY, BiCKERTON, DoLE, JJ. 

t 

In order to incur the penalty of an illegal escai)e from custody, the party 
must have been legally arrested and be a prisoner lawfully detained. 

Construction placed on Section 3 of Chapter 29 of the Penal Code. • 

Exceptions sustained. 

Opinion of the Court, by McCully, J. 

The defendant was charged under Section 3 of Chapter 29 
of the Penal Code with the offense of escaping from lawful cus- 
tody. The section reads : 

" Whoever, being a prisoner lawfully detained in the custody 
of any oflSicer or any other person authorized by law to detain 
such prisoner, in any other case than those provided for in the • 
preceding sections, escapes, shall \)q punished by imprisonment 
at hard labor not more than three months, and by fine not 
exceeding ten dollars." 

A search warrant had been issued authorizing the search of 
the defendant's premises for opium. The exception states the 
case, as follows : ** During the trial the Court ruled that the 
defendant was lawfully detained under the search warrant 
issued while the search was going on in the case, although no 
opium had been found upon him or his premises at that time, 
and dismissed the appeal."' The notes of evidence by the Circuit 
Judge and all exhibits on file may be referred to as part of the 
exceptions. The search warrant follows the terms of the statute. 
It commands that search be made of the premises of Sin Fook 
for sundry packages of opium, and if the same or any part 



186 OCTOBER, 1890. 

thereof be found, "that you bring the property so found ^gether 
with the body of the said Sin Fook, or other the person in 
whose possession the said property shall be found, before me 
(the magistrate) for examination." 

By this it appears that there was no authority to arrest the 
defendant, to take him before the magistrate for examination, 
unless the property searched for, in this case opium, should be 
found ; and no opium was found. What " lawful detention," 
then, could he have been in from which he could make an illegal 
"escape?" He must have been arrested before he could be 
detained under arrest, and the contingency upon which the 
officers had authority to arrest had not occured. 

The state of being under arrest is a definite one. Our statute 
prescribes in Section 6 of Chapter 49 of the Penal Code the 
method of arrest. " If the officer have a warrant he must show 
it )» * * * If the arrest is made without warrant, "he should 
give the party arrested clearly to understand for what cause he 
undertakes to make the arrest, and must require him to submit 
and accompany him to the jail or magistrate. This done, the 
arrest is complete." The party then becomes a lawful prisoner 
in' detention, and if by force or guile he gets away, it is an 
escape. A person whom the officer has under suspicion may be 
watched and kept under observation if the officer is able to do 
so, but it is not an escape if he departs from view. There is no 
provision for legally holding a person in detention until he may 
or may not be arrested ; hence no departure is an escape. 

The argument is made that there would be a practical diffi- 
culty in securing and often in identifying the possessor of opium 
found by search warrants, if the suspected person could not be 
detained pending the search. This is the argumentum ah incon- 
venientiy which does not prevail in the construction of penal 
statutes. 

The exception is sustained. 

Deputy Attorney- General Creighton, for the Crown. 

F, M, Hatch, for defendant. 



KAN WING CHEW, V8. WONG LUNG. 187 



KAN WING CHEW vs. WONG LUNG. 

Appeal from Police Justice of Honolulu. 

Hearing, October 20, 1890. Decision, November 25, 1890. 

JuDD, C. J., McCuLLY, Bickerton, Dole, JJ. 

A judgment debtor was arrested upon aUegations of fraud, in pursance of 
Section 953 of the Civil Code. On the evidence adduced no fraud 
was found and the debtor was discharged from custody. 

Held, on appeal, that the authority to issue a warrant of arrest, on a charge 
of fraud, implies the power to discharge from custody when the fraud 
is disproved. 

Opinion op the Court, by Judd, C.J. 

This is an appeal by plaintiff on points of law from the Police 
Court of Honolulu. The essential facts are as follows: 

On August 21, 1889, the plaintiff obtained a judgment against 
defendant in the Police Court of Honolulu for $226.35. The 
judgment was not paid, and a year having elapsed so that no 
execution could be taken out thereon, plaintiff brings an action 
in the aforesaid Court on the judgment. 

Coincident with the application for the summons, the plain- 
tiff made affidavit that *' defendant now seeks to evade the pay- 
ment of the said judgment by secreting his, said defendant's, 
property and by transferring and intending to transfer the same 
to third parties not certainly known to this defendant," and on 
this affidavit and the filing of the bond required, in pursuance 
of Section 953 of the Civil Code, the Police Justice issued a war- 
rant for the arrest of the defendant and his detention until he 
should enter into security to abide the result of the suit and 
pay the amount of such judgment as might be recovered by the 
plaintiff. 

At the trial below, on September 1st, the plaintiff proved his 



188 OCTOBER, 1890. 

judgment debt and obtained judgment therefor. The defendant 
then moved for his discharge from custody on the ground that 
he was guilty of no fraud, and had not sought to evade the pay- 
ment of his debt by secreting his property, or by transferring or 
intending to transfer the same to a third party. 

On the evidence adduced, the Police Justice found no fraud 
as alleged, and discharged the defendant from custody. 

The plaintiff appealed to this Court in Banco, and contends 
" that there is not in the statute in question, nor elsewhere in 
our written law, any authority for the discharge of such defend- 
ant, after his arrest upon process, in regular form, issued in said 
section, without his giving the specified security." 

The only statutory authority for the discharge of persons in 
arrest for any cause or accusation is the general provision in 
section 893, that the " criminal jurisdiction (of Police Justices) 
shall be co-extensive with their respective circuits for the pur- 
pose of the arrest, examination, commitment and enlargement 
of parties accused." The case at bar is not criminal, nor a 
Crown action, but it has a penal character. The defendant is 
thereunder imprisoned. He is a party accused, to wit, of a 
fraud. He is entitled to a hearing. If he is found not guilty is 
he to be held equally as if he were guilty? It would be anom- 
alous and an exception to the general power of " enlargement." 
This term includes not merely release from imprisonment, but 
release from the condition of giving a bond. The process of 
arrest was granted upon specific alleged grounds. When it ap- 
pears that they do not exist, has not the Magistrate power to 
vacate his order? 

It does not seem to be a forced construction to hold that it 
comes within the terms of the statute we have cited, and if it 
were not expressed it would be implied by the statute, otherwise 
a debtor committing no fraud might be kept in prison as long 
as his creditor was willing to pay the per diem of fifty cents for 
his support. 

Appeal dismissed. 

0. W. Ashford, for plaintiff. 

/. M. Davidsoriy for defendant. 



SKINNER V8. GULICK. 189 



SKINNER & CO. V8. C. T. GULICK, Tax-Collector. 

Exceptions. 
Hearing, Octobeb 20, 1890. Decision, November 25, 1890. 

JUDD, C.J., McCULLY, BiCKERTON, DoLE, JJ. 

On the first day of July, 1888, the plaintiffs were in possession of the property 
of the Hawaiian Tramways Company, limited, and engaged in the 
work of constructing the street railways under the franchise to said 
company. While in such occupancy, and after the first day of August, 
the Assessor for Honolulu aBsessed to plaintiffs the said franchise. 
The tax was paid by plaintiffs under protest, and they brought action 
to collect the same. The Hawaiian Tramways Company, limited, did 
not file their corporation papers and notices in the Interior Depart- 
ment until August 29th, 1888. The plaintifEs made no return of the 
franchise, and did not disclose to the Assessor the names of their 
principals, or the fact that they were in possession merely as agents 
and contractors. 

Held, that the corporation had no existence under the Hawaiian laws on 
the first of July, 1888. That the plaintiffs were in possession of the 
franchise. That it was the duty of the Assessor to make an assess- 
ment according to the beet information within his reach. That, under 
the circumstances, the plaintiffs were liable for the taxes. 

Opinion op the Court, by Bickerton, J. 

This matter was heard by Mr. Justice Dole, the jury being 
waived, his decision being rendered August 11th, 1890, giving 
judgment for the defendant. 

Upon a careful consideration of this case we are of opinion 
that the decision appealed from should be sustained, and we 
accordingly affirm the same. 

Exceptions overruled. 

Decision of Dole, J., Appealed From. 

It appears from the evidence that the franchise for construct- 
ing and operating street railways in Honolulu, granted by the 



190 OCTOBER, 1890. 

Legislatures of 1884 and 1886 to William R. Austin, was trans- 
ferred by him to Henry R. Armstrong, a partner in the firm of 
' Skinner and Company of London, plaintiffs herein, and was by 
him transferred to the Hawaiian Tramways Company, limited, 
a foreign corporation, previous to the first day of July, A. D. 
1888. 

For several months in the year 1888, covering the first day of 
July, the plaintiffs were in possession of the property of the 
Hawaiian Tramways Company, limited^ and engaged in the 
work of constructing the street railways under the franchise. » 
While in such occupancy, and after the first day of August, the 
assessor for said Honolulu assessed to plaintiffs the said fran- 
chise upon a valuation of one hundred thousand dollars, upon 
which the tax is one thousand dollars. After some correspond- 
ence with the defendant Tax-Collector, this tax was paid by 
plaintiffs under protest, and this action was brought by them 
to collect the same. 

It is in evidence that the Hawaiian Tramways Company, 
limited, did not file their corporation papers and notices in the 
Interior Department as by law required until August 29th, 1888. 
Said corporation, then, had no existence under the Hawaiian 
laws on the first day of July, 1888, but at that time the work of 
constructing the street railways under the franchise was actively 
prosecuted by the plaintiffs ; it must be admitted, therefore, 
that they were exercising the rights granted by the franchise, or 
in other words, that they were in possession of the franchise. 
This being so, they were required by law to make a return of 
the same to the assessor during the month of July. There is 
no evidence that any such return was made. It became then 
the duty of the assessor to make an assessment according to the 
best information within his reach. The tax upon the franchise 
was charged to Skinner and Company, not to the Hawaiian 
Tramways Company, limited, as might be inferred from the 
correspondence in the case. 

It thus appears that the plaintiffs, as the agents of the Hawa- 
iian Tramways Company, limited, did not disclose to the assess- 
or the names of their principals or the fact that they were in 



MAGOON V8. AMI. 191 

possession merely as agents and contractors, as they might and 
should have done by making the assessment returns required 
by law. 

Under these circumstances the plaintiffs were liable for the 
taxes paid under protest, both by the principles of common law 
and the Hawaiian statute relating to the assessment and collect- 
ion of taxes. 

Let judgment therefore be entered for defendant. 

Paul Neumann, for plaintiffs. 

Chaa. Creighton, for defendant. 



J. A. MAGOON, Administrator of Estate of Chun Lung, 

deceased, V8. S. AMI. 

Exceptions. 

Hearing, October 20, 1890. Decision, November 25, 1890. 

JUDD, C.J., McCULLY, BiCKERTON, DoLE, JJ. 

OmiBsion of names in two plaoes in blank forms, used in petition for let- 
ters of administration, and in the order therefor, are not fatal, as the 
real meaning and intent of the i>etition and order can be gathered 
from other parts of the same. 

The Clerks of the Supreme Court are authorized to issue and sign orders 
and notices of hearings in probate. 

The action being assumpsit by the administrator to recover claims of 
the deceased intestate, it is not open to the defendant to contest the 
appointment of plaintiff as administrator, or to question collaterally the 
validity of his apponitment. 

Flea in abatement overruled. 

Opinion, op the Court, by Judd, C.J. 

We have carefully examined the decision of Mr. Justice Dole 
in this case rendered on the 2d of October last, and after due 
consideration are of the opinion that the same ought to be 
affirmed, and we hereby adopt and affirm the same. 



192 OCTOBER, 1890. 

The Plea in Abatement is overruled and the defendant must 
answer in ten days, and the cause be put on the calendar for trial 
at the next term. 

Decision of Dole, J., Appealed From. 

The plaintiff brought this action in assumpsit as the admin- 
istrator of the estate of Chun Lung, deceased intestate, and the 
defendant filed his plea of abatement as follows: 

" And now comes said defendant, S. Ami, specially appearing, 
and shows: 

1. That said J. Alfred Magoon is not in law or in fact the 
administrator of the estate of Chun Lung, and has no legal 
authority to sustain this suit against this defendant for the fol- 
lowing reasons, namely: 

(a) The petition for the appointment of said Magoon as such 
administrator did not and does not set forth or allege the death 
of said Chun Lung as by law required, wherefore all the pro- 
ceedings upon or in pursance of said petition were and are ultra 
vires of the Court and without its jurisdiction. 

(b) That the order for a hearing of and upon said petition 
and of publication of notice of the same does not appear to 
have been and was not made by said Supreme Court, or any 
Justice thereof, or by any person thereunto by law authorized. 

(c) That no order, decree or judgment has been made or 
entered or signed by said Court, or by any Justice thereof, or by 
any other person thereunto by law authorized, constituting or 
appointing said J. A. Magoon such administrator as aforesaid. 

Wherefore defendant prays that said action may be abated 
and said complaint be dismissed, and for judgment whether 
this defendant shall be required to make any other or further 
answer thereto." 

It appears by the record in the matter of the Estate of Chun 
Lung, that C. Afong, the father of the deceased, petitioned the 
Court that letters of administration be issued to J. A. Magoon, 
the plaintiff herein, which petition is entitled, " In the matter of 
the Estate of Chun Lung, deceased," and alleges as follows: 
"The petition of C. Afong, fiather of the said Chun Lung, intes- 



MAGOON V8, AMI. 193 

tate, deceased, respectfully shows to this Court that the said 
(blank space) died on or about the 11th day of August, A. D. 
1889, being at the time of his death a resident of Honolulu, and 
leaving estate within the jurisdiction of this Court," etc. Al- 
though the petition shows great carelessness in drafting, it sub- 
stantially alleges the death of Chun Lung at the time and place 
given. No one reading it can fail to understand, and that with- 
out guessing, that such is its meaning. The title describes 
Chun Lung as deceased, and the petition opens with a further 
description of him as deceased and intestate, and there can be 
no doubt that the allegation of death refers to him and no one 
else. 

Ui)on the second reason given in the plea against the validity 
of the plaintiff's appointment as administrator, that is, that the 
order for hearing of the petition for letters of administration 
was not made by the Supreme Court or any Justice thereof, or 
anyone thereto legally authorized, I find that the only provision 
for such orders of hearing is in Rule of Court No. 36, division 
C, which provides that ** No appointment of an administrator 
or executor, except of a temporary administrator, etc., ♦ ♦ ♦ 
shall be made except on sufficient notice of the matter to be 
heard and of the time and place of hearing," and " Notice of 
hearii^gs on the appointment of executors or administrators 
shall be given by publication in such newspaper or newspapers 
as the Court may order for three successive weeks," etc. The 
gist of this requirement is sufficiency of notice. The defendant's 
point is that the notice which was made, being only signed by 
one of the clerks, in this case by the Deputy Clerk, is invalid. 
Section 860 of the Civil Code says: the Clerk of the Supreme 
Court " shall have power to issue process in all suits and mat- 
ters brought before the Supreme Court or before the Chief Jus- 
tice or any Associate Justice thereof at Chambers." Chapter 
42 of the Laws of 1884 gives similar powers to the Deputy Clerk 
and Second Deputy Clerk. 

I consider that these statutes in conferring upon the clerks the 
power of issuing " process in all suits and matters brought be- 
fore the Supreme Court or before any Justice thereof at Cham- 
18 



194 OCTOBER, 1890. 

bers," have given them authority to make and publish, accord- 
ing to the Rule of Court above quoted, a notice of the hearing 
of a petition of letters of administration; for while such a notice 
may not be strictly a process, it is in the nature of a process and 
must be regarded as within the powers given to clerks by the 
law. ^' Process has two significations. First, it is largely taken 
for ail the proceedings in any action or prosecution, real or per- 
sonal, civil or criminal, from the beginning to the end; secondly, 
that is termed the process by which a man is called into any 
temporal Court." Perry vs, Lorillard Jns. Co,, 6 Lansing, 204. 

The third point made against the validity of the plaintiff's 
letters of administration is that there is no order appointing the 
plaintiff as such administrator. The order under which letters 
were issued to the plaintiff, after the title, proceeds as follows: 
'^ The petition of 0. Afong praying for letters of administration 
upon said estate to be granted to J. Alfred Magoon coming on 
this day to be heard, due proof was made," and then after a 
recital of matters proved, goes on to say, ^' that the said J. Alfred 
Magoon appears competent to perform this trust. It is ordered 
that letters of administration on the estate of said Chun Lung 
issue to the said (blank space) upon his filing an approved 
bond in the sum of $20,000." The same carelessness is apparent 
here that has been noticed in the original petition in the same 
proceedings, and the same considerations apply here as there; 
the said Magoon being so clearly described in other parts of the 
order and also in the original petition for letters of administra- 
tion as the person to whom it was desired and intended that the 
letters should issue, that the absence of his name as above shown 
creates no doubt or uncertainty as to the meaning and inten- 
tion of the order. It is substantially the order of the Justice 
that letters be issued to J. A. Magoon, the plaintiff in this case. 

The defendants have quoted a number of authorities in sup- 
port of their plea, showing that a Court must have jurisdiction 
of the subject matter before it can make valid decrees affecting 
such matter, and that it is essential that all material facts should 
be alleged. This is good law, but under my findings in regard 
to the record of the proceedings for letters of administration it 



MAGOON V8. AMI. 195 

does not apply to this issue. I therefore overrule the plea in 
abatement upon all the points submitted by the defendant. 

The plaintiff's counsel also makes the point against the plea 
that it is not open to the defendant in this way to contest the 
plaintifTs appointment as administrator. It is my opinion 
that it is not open at all to the defendant to contest the ap- 
pointment of plaintiff as administrator. While it is true that 
a want of jurisdiction in the Court over the subject matter 
makes all of the proceedings and decrees of such Court relating 
to the subject matter void, yet it is not everyone that can raise 
this objection. A defendant to an action by an administrator, 
who is not otherwise interested in the estate, may not, I think, 
attack the status of the administrator in such action. In the 
case of Emery vs, Hildrethj 2 Gray, 231, which was an action of 
debt, the Court say: "If the appointment was voidable, it could 
be avoided only by those whose rights or interests had been af- 
fected by such appointment. In the question who was to be 
appointed administrator of the estate of the deceased the de- 
fendant had no legal interest. He had no place in Court. He 
could not have objected to the appointment of the plaintiff in 
the Court of Probate, and a fortiori cannot now. His rights 
are not prejudiced by the appointment of a wrong person, be- 
cause payment of his debt to such person, before reversal of the 
decree of appointment, would be a full protection to him, and 
because a judgment in a suit by such administrator would be a 
bar to a suit for such debt by any administrator subsequently 
appointed." This is a parallel case to the one at issue, and the 
same principles apply. It is a matter of indifference to the de- 
fendant in the case before the Court whether the plaintiff is le- 
gally appointed or not, if a judgment which may be rendered 
against him in these proceedings will be a bar to all future 
suits upon the same subject matter. The case of Roderigaa vs. 
East River Bank, 63 N. Y., 462, referred to by plaintiff's coun- 
sel, is also in point. 

For this reason also I overrule the plea in abatement. 

W. A, Whiting, for plaintiff. 

C. W. Ashford and F. M. Hatch, for defendant. 



196 OCTOBER, 1890. 



A. K. MIKA, Tax Collector, vs. V. KNUDSEN. 

Exceptions from Fourth Circuit Court. 

Hearing, October 20, 1890. Decision, November 25, 1890. 

JUDD, C.J., McCULLY, BiCKERTON, DoLE, JJ. 

The defendant having made the return to the AsseBBor of estate belong- 
ing to his wife, claiming to own an interest therein, and in all other 
respects acting in her behalf and stead, may properly be made de- 
fendant and sole defendant in an action by the Tax Collector for the 
recovery of the tax. 

The law prescribing no other mle of valuation of estate than its full cash 
value, or the price it might bring if sold at auction, the mere judg- 
ment and appraisement of the Assessor or the Board of Tax Appeals 
cannot be set aside by this Court, on account of a valuation claimed 
to be excessive. 

Exceptions overruled. 

Opinion of the Court, by McCully, J. 

This case comes from the August Term, 1890, of the Circuit 
Court of the Fourth Judicial Circuit, upon the following bill of 
exceptions: 

1. That the declaration and proofs show no cause of action 
against the defendant. 

2. That the basis of valuation on which the assessment of 
said Tax Assessor was made is shown by the proofs to be incor- 
rect, being not the present value of the land in question, as in- 
dicated by its rental, but the prospective and possible value. 

3. That Mrs. V. Knudsen should have been joined as a de- 
fendant. 

The evidence taken by the local Circuit Judge in Chambers, 
and exhibits, are to be considered with the bill. 

Suit was brought in the District Justice's Court by the plaint- 
iflf, the Tax Collector for the District of Koloa, for the recovery 



MIKA V8. KNUDSEN. 197 

of the sum of three hundred and fifty dollars, together with the 
statute charge on delinquent taxes of ten per cent., which tax 
had been assessed upon land known as the Ahupuaa of Koloa, 
being the property of the wile of defendant. The point is made 
by the first exception that the defendant was not personally 
liable, and in the third that if he were his wife should also have 
been joined. The exhibits, however, clearly show that the de- 
fendant has undertaken to represent his wife in the return of 
this property in the manner contemplated by Sections 21 and 
22 of the General Tax Act, as they stand therein, and as they 
were amended by Chap. 72 and 50, of the Acts of 1888, to make 
him "chargeable with the tax payable in respect thereof in the 
same manner as if such property were his own," and it is clear 
that the statute does not contemplate that the principal or ees- 
tui que trust shall be joined in suit with the agent, guardian or 
trustee. The defendant in his letter of May 17th to Mr. Far- 
ley, the Tax Assessor, says of this property, "I own an interest 
in Koloa," to wit, the reversion of the leases. , This defendant 
has not contested his liability in respect to another parcel of 
property in the same circumstances, on which he has paid the 
tax. 

The gravamen of this controversy, it is plain from the de- 
fendant's statements and correspondence on file, is that property 
purchased in 1868 for $11,000, under leases having several 
years yet to run at $750 per year, is now assessed at a valua- 
tion of $35,000 and taxed $350. On this is founded the second 
exception. 

The general tax law, enacted in 1882, provided. Sec. 25, that 
"in respect of real estate held in any tenancy exceeding a 
yearly tenancy, the interest of the owner of such real estate 
shall be estimated at a sum equal to eight years rent received 
from such real estate." C. L., p. 121. If this provision were 
now existent the assessment of $35,000 would clearly be in- 
correct, in violation of a statute rule, and it would be 
within the jurisdiction of the Supreme Court to set it aside, 
notwithstanding any action of the Board of Tax Appeals con- 
firming it. But by the Act of 1886, Sec. 6, the above provision 



1 



198 OCTOBER, 1890. 

was repealed, leaving the rule of valuation without respect to 
tenancy, "every person shall be liable to taxation in respect of 
the full cash value of his interest in such property." Thus the 
rule of certainty as to the appraisement of property under lease 
was repealed. It cannot be said that this was unreasonable 
legislation ; estates may be rented at too high rent, as many 
leases taken by Chinamen show, or ^t too low a rent, as times 
Change. It is conceivable that property might be put under 
the protection of low rentals, by connivance. And Section 8 of 
this Act amended Section 28 of the original Act to read, "the 
full cash value of the interest of any person in real or personal 
property shall be estimated at a sum which such interest might 
reasonably be expected to bring at a sale by public auction for 
cash." The Assessor has only these guides to hie judgment in 
fixing values, and upon his judgment values depend, subject 
only to the judgment of three other men, constituting the Tax 
Appeal Board. 

The cases in which the Supreme Court can vacate an assess- 
ment are examined in the recent case, Knudsen vs, Stolz, ante, 
page 81. 

The assessment in this instance may be too high, or not 
fairly apportioned between the lessor and the lessees, but upon 
this it is not our province to pass judgment. 

The exceptions are overruled. 

Chas. Creighton, for plaintiff. 
. F. M, Hatch, for defendant. 



THE KING VB. LIILII. 199 



THE KING V8, MOSES LIILII, KALAWAIA AND WIL- 
LIAM JOE. 
Question Reserved by McCully, J. 
Hearing, January 21, 1891. Decision, February 10, 1891. 

JuDD, C.J., McCuLLY, Bickerton, Dole, JJ, 

Motion of the prosecution to dismiss appeal from conviction in Police 
Court of Honolulu of violation of Chapter XL., Laws of 1886, amend- 
ing Vagrancy Act, on the ground that no appeal lies from conviction 
of vagrancy under common law rules: 

Held, that under Hawaiian statute law, appeals lies in all cases, both civil 
and criminal, from Police and District Courts, unless an exception is 
made by statute. 

Held, that vagrancy being a status and not an act, the addition of offenses 
to the vagrancy statute under the amended law, which are distinc- 
tively acts, does not thereby attach the quality of vagrancy to the 
coiomission of such acts. 

Opinion op the Court, by Dole, J. 

The defendants were convicted in the Police Court of Hono- 
lulu on the 3rd day of December, 1890, of violating Chapter XL. 
of the Laws of 1886, and appealed to the Supreme Court, and 
their case was entered otl the calendar of cases for the January 
Term. Earl}'' in the term the Attorney-General filed a motion 
that the case " be stricken from the Calendar on* the ground that 
no appeal lies from a conviction on the charge of vagrancy," 
and requested the Court to reserve the question raised by the 
motion for the consideration of the Court in Banco. The mat- 
ter was argued before this Court during the January Term. 

The Attorney-General contends that no appeal lies from a 
conviction of vagrancy under the precedents of the Common 
Law, and refers to the Hawaiian case of The King vs. Coffee^ 



1 



200 JANUARY, 1891. 

in which Judge Preston dismissed a similar appeal apon this 
ground. 

Chapter XL. of the Laws of 1886 is entitled, " An Act to 
amend Section 1 of Chapter XXXVII. of the Penal Code and 
the Act amendatory thereof, relating to vagrants and idle and 
disorderly persons." This amendment has, in some respects, 
radically modified the original law, which provides lor the pun- 
ishment of offenses which are defined rather as conditions of 
living or habitual methods of obtaining a subsistence, than acts; 
for instance, habitual begging by an able-bodied person, or liv- 
ing in idleness and eating the food of others by one without visi- 
ble means of support. The amended law, on the other hand, 
has added several offenses which are acts, such as soliciting 
alms, subscriptions or contributions under false pretense, or en- 
tering by night without lawful excuse a dwelling-house, ware- 
house, outhouse or enclosed yard. 

Vagrancy being a status rather than an act, a person found 
guilty of the last-mentioned offenses and punished therefor is not 
thereby convicted of vagrancy, even though the two classes of 



offenses are defined in the same act and punished with the same 
penalties. 

The evidence, upon which the conviction of the defendants in 
the Police Court was based, shows that if they are guilty of violat- 
ing the law in question, they are guilty because of the commission 
of an act, and not because of any habitual condition of living: 
to wit, entering by night without lawful excuse a building or an 
enclosed yard. 

Whatever may be the Common Law rule as to appeals from 
convictions of vagrancy, it does not seem that such a rule would 
apply under the above reasoning to the case before the Court, 
supposing our statute law to be silent on the subject. We find, 
however, that our law (Chap. 62 Laws 1886) gives the right 
of appeal from the Police and District Courts in all cases, civil 
and criminal. Under these circumstances, Common Law prece- 
dents cannot affect the rights of parties to their ap|)eal. 

We therefore overrule the motion for dismissal of the appeal. 

Attomey-Oeneral Peterson, for the Crown. 

/. L. Kaviukou, for the defendants. 



HILO SUGAR CO. vs. MIOSHI. 201 



HILO SUGAR COMPANY vs. MIOSHI. 

Submission without Action. 

Hkarinq, January 21, 1891. Decision, March, 5, 1891. 

JuDD, C.J., McCuLLY, Bickerton, JJ. Dole, J., Dissenting. 

1. The Masters and Servants Law of this Kingdom is not contrary to 
the 11th Article of the Constitution, which prohibits involuntary ser- 
vitude except for crime. 

2. A Labor Contract made in Japan, to be executed in this country, 
contained provisions as to exemption from taxes, etc.: the ex- 
emptions not having been violated, the Court does not consider them 
further. 

8. The labor contract in question was not assigned. 

4w Stamps are not required on labor contracts with the Hawaiian Gov- 
ernment or Board of Immigration. 

Submission. 

The undersigned, Mioshi, a Japanese by birth, and the Hilo 
Sugar Company, respectfully represent that they are parties to 
a question in difference which might be the subject of a civil 
action. That they have agreed upon a case containing the facts 
upon which said controversy depends, which are as follows: 

1. That said Hilo Sugar Company is a Hawaiian corpora- 
tion, doing business in the District of Hilo, Island of Hawaii. 

2. That said Mioshi is serving the Hilo Sugar Company un- 
der an instrument in writing signed in Japan by said Mioshi 
and R. W. Irwin, the duly authorized agent of the Board of 
Immigration of the Hawaiian Kingdom, a copy of which said 
contract is hereunto annexed and made a part hereof, marked 
Exhibit "A." 

3. That in pursuance of said instrument said Mioshi pro- 
ceeded from Japan to Honolulu, and upon his arrival in the 



202 JANUARY, 1891. 

Hawaiian Kingdom was directed by the Board of Immigration 
to work for the Hilo Sugar Company. 

4. That said Mioshi in pursuance thereof went to work for 
the Hilo Sugar Company in the month of February, A/D. 1889, 
and has ever since continued to work for said company under 
the terms of said instrument. 

5. That said Mioshi now contends that he cannot be com- 
pelled to serve said Hilo Sugar Company under said contract 
for the following reasons: First, that he is unwilling to work 
for said Hilo Sugar Compaay, and such involuntary servitude 
is prohibited by the Constitution. Second, that he had no 
power under the Constitution to alienate his liberty. Third, 
that the Board of Immigration had no right or authority to 
make said contract in the name of the Hawaiian Government. 
Fourth, that the Hawaiian Government is not bound by said 
contract. Fifth, that the Board of Immigration exceeded its 
authority by undertaking that the said Mioshi should be ex- 
empt from all and every kind of personal tax, and have the 
full, equal and perfect protection of the laws of Hawaii. Sixth, 
that said contract could not be assigned without his consent. 
Seventh, that neither the Board of Immigration nor the Ha- 
waiian Government is a person within the meaning of Section 
1417 of the Civil Code, authorizing labor contracts. Eighth, 
that the contract is not properly stamped. Ninth, that the as- 
signment is not properly stamped. 

And said parties aver that said controversy is real, and that 
these proceedings are taken in good faith to determine the 
rights of the parties. 

Opinion of the Court, by Judd, CJ. 

The legal questions involved may be summarized into three 
points. (1) Is the law of Masters and Servants constitutional? 
(2) Is the contract legally binding? (3) Is the contract prop- 
erly stamped? We shall discuss these questions in the above 
order. 

It is claimed by the defendant that, as he is now unwilling 
to carry out his contract or work any longer for the Hilo Sugar 



HILO SUGAR CO. vs. MIOSHI. 203 

Company, the law which compels him to do so is unconstitu- 

« 

tional, as his labor under the circumstances would be "involun- 
tary servitude," which is forbidden by Article 11 of the Consti- 
tution. This article reads, "Involuntary servitude, except for 
crime, is forever prohibited in this Kingdom. Whenever a 
slave shall enter Hawaiian territory, he shall be free." 

Article 11 of the Constitution of 1864 is identical. Article 12 
of the Constitution of 1852 reads, "Slavery shall, under no cir- 
cumstances whatever, be tolerated in the Hawaiian Islands; 
whenever a slave shall enter Hawaiian territory he shall be 
free; no person who imports a slave, or slaves, into the King's 
dominions shall ever enjoy any civil or political rights in this 
realm; but involuntary servitude for the punishment of crime 
is allowable according to law." 

The first Constitution, of 1840, guaranteed "life, limb, liberty, 
freedom from oppression, earnings of his hands and the pro- 
ductions of his mind," but not to those who act in violation of 
the laws. It also established that no service or labor "fehould be 
required of any man in a manner which is at variance wdth the 
above sentiments. 

The earliest legislation on the subject of masters and ser- 
vants was passed by the Legislature on the 21st of June, 1850, 
entitled, "An Act for the Government of Masters and Servants." 
It contained the provisions (Sec. 22) that any person who has 
attained the age of twenty years may bind himself, or herself, 
by written contract to serve another in any art, trade, profes- 
sion, or other employment for any term not exceeding five 
years;" and also in Sec. 23, "All engagements of service con- 
tracted in a foreign country to be executed in this, unless the 
same be in contravention of the laws of this, shall be binding 
here; provided, however, that all such engagements made for a 
longer period than ten years shall be reduced to that limit, to 
count from the day of the arrival of the person bound in this 
Kingdom." 

These provisions of law have remained on our statute book 
unaltered and unrepealed for a period of over forty years. They 
were incorporated into the Civil Code of 1859 as Sections 1417 



204 JANUARY, 1891. 

and 1418. They were a part of the law pf the land, and the 
Bystem of labor authorized by them was in active operation at 
the time when the Constitution of 1852 was "granted by Kame- 
hameha III., by and with the advice and consent of the Nobles 
and Representatives in legislative council assembled," which 
prohibited slavery. They continued as law while the Constitu- 
tions of 1864 and 1887, which prohibited "involuntary servi- 
tude except for crime," were promulgated. 

These provisions have not been amended by any of the various 
legislatures from 1850 to 1890, but some parts of the further pro- 
visions of the law, which provide for the enforcement of the con- 
tracts for labor, have been the subject of frequent legislative dis- 
cussion and amendment. Many parts of the Act have also been 
the subject of judicial construction, but the principle that a per- 
son may make. a binding contract to serve another for a term 
has remained untouched, and upon it our agricultural enter- 
prises rest in great measure. 

The legislature, then, and the people have given a practical 
interpretation to the Constitution, that o\xY system of contract 
labor is not the involuntary servitude forbidden by that instru- 
ment. Suppose, however, the legislature and the community 
are wrong and the contention of defendant is right. While not 
adopting the principle that "communis error facit jus," we as 
judges, in interpreting the organic law, must not be blind to the 
view which the statesmen and law-makers of this country have 
uniformly entertained towards this law. 

That slavery was the "involuntary servitude" intended to 
be prohibited by the Constitution is evident from what follows 
in the same Article, " whenever a slave shall enter Hawaiian 
territory, he shall be free." The word " servitude" is defined 
by lexicographers to be, as its first and most obvious meaning, 
" the condition of a slave," " the state of involuntary subjection 
to a master," "slavery," "bondage." The second definition, 
which is declared by the dictionaries to be less common and 
less proper, is the " state of a servant." Now, even if the 
secondary meaning of the word servitude be taken, to wit, the 
" state of a servant," or the condition of working for or serving 



HILO SUGAR CO. i«. MIOSHI. 205 

another, the qualifying word "involuntary*^ cannot be over- 
looked. A state or condition of service of one person to another 
must be involuntary, that is, without the will or against the will 
of the person so serving, to come within the prohibition. 

A fair and honest contract to work for another, willingly and 
freely made with a knowledge of the circumstances, cannot be 
said to have created a condition of involuntary servitude. The 
contract which creates the state or condition of service, if it is 
voluntary when made and the conditions and circumstances 
remain unchanged, except that the mind of the one who serves 
is now unwilling to fulfill it, is not by that fact changed into a 
contract of involuntary servitude forbidden by law. If the con- 
tract is lawful and constitutional in its im eption, it does not be- 
come illegal or unconstitutional at the option of one of the par- 
ties to it. 

The unwillingness or the incapacity of a party to a contract 
to fulfill it are not fatal to its validity. If the Constitution pro- 
hibits any service which has become for any reason or without 
any reason against the will or inclination of the contractor, its 
intent to effectuate this should be expressed in language not 
doubtful. The Master and Servants' Act declares that such 
contracts may be lawfully entered into. And it is a fundamen- ' 
tal rule of construction that " Courts are never to declare an act 
void unless the nullity and invalidity of the act are placed, in 
their judgment, beyond reasonable doubt. A reasonable doubt 
must be solved in favor of legislative action and the act sus- 
tained." Cooley Const. Lim., p. 182, and cases cited. 

" The opposition between the Constitution and the law should 
be such that the judge feels a clear and strong conviction of 
their incompatibility with each other." Fletcher vs. Peck, 6 
Cranch, 128. " It is but a decent respect due to the wisdom, the 
integrity and the patriotism of the legislative body by which 
the law is passed, to presume in favor of its validity, until its 
violation of the Constitution is proved beyond all doubt." Og- 
den V8. Saunders, 12 Wheat., 270. 

' Our labor contract system is not slavery. Reference is made 
to an expression in The Slaughter-house Case9, 16 Wall., 72: 



206 JANUARY, 1891. 

" If Mexican peonage or the Chinese coolie labor system shall 
develop slavery of the Mexican or Chinese race within our ter- 
ritory, this amendment" «nay safely be trusted to make it void. 

The amendment is the 18th to the Constitution of the United 
States, as follows: " Neither slavery, nor involuntary servitude 
except as a punishment for crime, whereof the party shall have 
been duly convicted, shall exist within the United States, nor 
any place subject to their jurisdiction." 

We do not hesitate to say that if the Master and Servants' law 
shall be found to develop slavery of any race within our King- 
dom, this Article 11 of our Constitution may safely be trusted 
to make it — the slavery — void. The numerous decisions of this 
Court on this Act afford ample ground for the expectation that 
no form of slavery would be held by the Court to be counten- 
anced by the Constitution. We have thus come to the conclu- 
sion that the contract of the defendant is not invalid on the 
ground alleged, and that the law which authorizes it is not re- 
pugnant to the Constitution. 

The further objections urged on the part of the defendant why 
he should not be compelled to work for the Hilo Sugar Company, 
are (1) that the Board of Immigration had no right or author- 
ity to make such contract in the name of the Hawaiian Govern- 
ment; (2) that the Hawaiian Gk)vernment is not bound by said 
contract; and (3) that the Board of Immigration exceeded its 
authority by undertaking that the said Mioshi should be ex- 
empt from all and every kind of personal tax and have the full, 
equal and perfect protection of the laws of Hawaii. 

We dismiss these objections with the remark that there is 
nothing in the submission to show that the Hawaiian Govern^ 
ment does not consider itself bound by the contract, or that the 
authority of the Board of Immigration to make the contract in 
the name of the Government is disputed; also that it is not 
claimed that the guarantee of exemption from personal taxes 
has not been observed, or that the protection of the laws of Ha- 
waii has not been extended to the defendant. 

Objection 6 is ^^ that said contract could not be assigned with- 
out his consent." If the contract of labor in question has been 



HILO SUGAR CO. vb, MIOSHI. 207 

assigned without the laborer's assent, a serious question would 
be raised. But it is not claimed by defendant's counsel that the 
contract has been formally assigned. An inspection of the con- 
tract shows that it has not been assigned. It still subsists as a 
contract between the Hawaiian Government and the defendant, 
and the defendant is found with " employment as an agricultu- 
ral laborer" with the Hilo Sugar Company, which engages to pay 
the stipulated wages and to perform all the stipulations and 
agreements to be performed by the Board of Immigration in 
favor of the laborer, the Board reserving the right to cancel the 
contract for any cause to be deemed sufficient by the Board. In 
any suit to compel the laborer to fulfill his engagement to work, 
the plaintiflf would have to be, in correct practice, the Board of 
Immigration of the Hawaiian Government, and the suit of the 
laborer would have to be brought against the same party. 

Objection 7 is *' that neither the Board of Immigration nor 
the Hawaiian Government is a person within the meaning of 
Section 1417 of the Civil Code authorizing labor contracts." 
Section 1424, a part of the labor law, recognizes the validity of 
a contract of service to a company of individuals. This point 
was not alluded to in argument, and we have no doubt that the 
statute allows contracts of service with the Government or the 
Board of Imi^igration. 

The last objections by the defendant are that neither the con- 
tract nor the assignment are properly stamped. The Act relat- 
ing to stamp duties, passed in 1876, prescribes that no instru- 
ment requiring to be stamped shall * * be of any validity 
in any Court of this Kingdom unless the same shall be properly 
stamped. Provision is made for the payment into Court of the 
stamp duty to enable the instrument to be used in evidence. 
And that instruments executed in foreign countries may be 
stamped within three months after their arrival in this King- 
dom without the payment of any penalty. If after that time, 
they are liable to pay a double duty. 

The want of a stamp does not make the contract invalid. But 
we must consider the matter by the terms of the submission as 
if the contract was now offered in evidence. It is unstamped. 



208 JANUARY, 1891. 

The object of the law was to obtain revenue for the Government. 
The Stamp Act requires a stamp of $1 on contracts between 
masters and servants for labor, and $1 for each year and part of 
a year after the first ; the duty to be charged on each copy and 
to be paid by the employer. In the case before us the Govern- 
ment id the employer. Shall the Government pay a duty owing 
to itself? We think the question answers itself. 
Judgment for the plaintiff. 

Dissenting Opinion of Dole, J. 

It is my opinion that the contract in this case is not enforce- 
able for the reason that it is not a contract between the parties. 
It is, in brief, a contract between the Hawaiian Government 
and the defendant, in which the latter substantially agrees to 
labor for such master or masters as the Hawaiian Government 
shall select, although this purpose is skillfully veiled in lan- 
guage which dwells somewhat conspicuously upon the guarantee 
of the Hawaiian Government to furnish the defendant wijh em- 
ployment. The contract binds him to accept such employment 
as the Hawaiian Government may assign him to, in other words, 
to accept such master as the Hawaiian Government may select 
for him, and if he objects, to abide by the decision of the Bureau 
of Immigration, a bureau of the Hawaiian Government. 

On the back of the contract is endorsed an agreement between 
the Board of Immigration and the Hilo Sugar Company, dated 
over two weeks after the original contract, by which the defendant 
is handed over to the Hilo Sugar Company, and they stipulate to 
carry out the covenants made by the Board of Immigration in 
favor of the defendant in said contract. As a matter of fact 
there is no such contract, the original contract being between 
the Hawaiian (Jovernment and the defendant, who is not a party 
to this agreement, assigning him to the Hilo Sugar Company. 
So we have before us the case of a laborer held for service under 
a contract, penally enforceable, if enforceable at all, to masters 
with whom he has never contracted; but he has come into their 
hands, without having the opportunity of choosing his employ- 
ers, by a process suspiciously similar to that by which a Hono- 



HILO SUGAR CO. vs. MIOSHI. 209 

lulu hack, horse and harneas are hired out to a driver. The 
fact that the laborer receives proper wages for his work does not 
take the case out of that condition of involuntary servitude or 
semi-slavery which is inconsistent with our Constitution and 
laws, and with the general tenor of the decisions of this Court, 
with one or two solitary exceptions. 

The case of Nott vs. Kanahele, 4 Hawn., 14, is, I admit, dis- 
tinctly opposed to the above view, but I believe that decision to 
be wholly erroneous. That was not, however, as evident a case 
against personal liberty as the one before the Court, as the plain- 
tifiTs were the original contractors, and, having sold their planta- 
tion, they brought the suit to compel their laborer to work on the 
plantation they had sold, he having agreed by his contract to 
work for their assigns in case of a sale. But in the case before the 
Court there is no privity whatever between the parties ; the 
plaintiffs are the purchasers of the defendant's contract at cost 
from the Hawaiian Government. This is, I think, the clear 
common sense view of the transaction, in spite of the strenuous 
avoidance of any appearance of such a meaning in the language 
of the instrument. 

It sometimes happens that, in the final settlement of a legal 
question, the best law is found in a dissenting opinion. This is, 
I think, the case in Nott vs. Kanahele, and I desire to quote 
briefly from the dissenting opinion in that case of Mr. Justice 
Judd: 

"The words of Section 1417 (Civil Code) above quoted, 'any 
person * * * may bind himself to serve another,' means that 
he may bind himself to serve an individual who is ascertained 
and known to the laborer at the time of making his contract, or 
who could be ascertained by the laborer if he made inquiry. 
This section does not authorize a man to make a contract to 
serve one who is wholly unascertained, or who is to be ascer- 
tained independently of the servant's will. The policy of our in- 
stitutions and laws forbids the making of such contracts," 
(p. 17). 

"Therie is no enactment of the Legislature that will compel 
a man to work for another or his assigns,^^ (p. 18.). 
14 



210 JANUARY, 1891. 

*'If a man could be passed from one to another, like a chattel, 
by an assignment of his contract, it reduces him at once to a 
chattel, and this is a form of involuntary servitude which, 
though for a limited period, is nevertheless repugnant to the 
policy of our institutions and forbidden by Article 11 of the 
Constitution'' (of 1864), ( p. 18-19). 

'*If a contract, that is, an agreement by which one person 
binds hinself to serve another, is in its essence and nature un- 
assignable, the law will not allow a laborer to make a contract 
which is in its terms assignable. He cannot make an engage- 
ment which is illegal and inconsistent with the liberty which 
every man has of choosing his own employer. He may not so 
barter away his freedom in advance." (p. 19.) 

It would not be easy to improve on the wording of these ci- 
tations in stating the prevailing legal sentiment of the civilized 
^orld on this question. This position is supported by Waihee 
Plantation vs. Kalapu, 3 Hawn., 760; Dreier vs. Kuaa, 4 Hawn., 
534, and In re Qip Ah Chan. 6 Hawn., 25. 

In Dreier vs. Kuaa the Court say, (p. 536): "We cannot di- 
rect the defendant's labor on this plantation, for he (Dreier) 
has no interest in it; there is no privity of contract between 
these laborers and the owner of the Koloa Sugar Company, and 
therefore the defendants cannot be compelled to work on this 
plantation." 

The case of Qip Ah Chan was tried in Chambers before Mr. 
Justice Hartwell, in 1870, and his decision contains the follow- 
ing language, (p. 41): ''I do not regard that a contract is en- 
forceable under this penal statute and within its meaning, un* 
less it is in writing, designating^ the parties either by name or 
in such a manner that they can be ascertained precisely at the 
date of the contract. It is unnecessarv to comment on the wis- 
dom of a statute restricting the enforcement by penal servitude 
of contracts for labor to those which are made in writing with 
another, or with a firm, or on considerations which might arise 
on a law which allowed the penal enforcement of contracts be- 
tween parties not named or ascertained at the date of the con- 
tract." 



HILO SUGAR CO. vs. MIOSHI. 211 

The liberty of choosing one's own employer is undoubtedly 
within the inalienable rights guaranteed to "all men" by Arti- 
cle 1 of the Constitution. How, then, can one alien dispose of 
such liberty? A contract waiving this right is inconsistent 
with this great provision of the Constitution, and is therefore 
illegal and void. This is what the contract before us distinctly 
does. 

I am also of the opinion that the instrument reqilires to be 
stamped. This requirement is clearly set forth in the statutes, 
and no exception is made. Chapter 55 of the Laws of 1876 re- 
quires this, and provides that "no instrument requiring to be 
stamped shall * * * be of any validity in any Court of this 
Kingdom unless the same shall be properly stamped." (Section 
9). And Chapter 30-of the Laws of 1886 provides that any agent 
to take acknowledgments of contracts "who shall certify to the 
acknowledgment of any contract not fully stamped shall be li- 
able to a fine" of fifty dollars. 

The argument of plaintiff's counsel that the Government, 
being the employer, would have to pay for the stamps, and 
therefore the Stamp Act does not apply to this contract, is not 
convincing to my mind. In fact, the Government is not the 
employer, nor does the contract pretend that such is the case. 
The Government has no work for these men, no plantations 
upon which to employ them; it is merely the channel through 
which the laborer reaches an employer. The contract is incho- 
ate by its terms until it has been supplemented by the endorse- 
ment which provides an employer, and he , by law, is liable to 
stamp duty. 

F. M. Hatch, for plaintiff. 

D. L, Huntsman, for defendant. 



212 JANUARY, 1891. 



KILA V8. KAHUHU. 



Exceptions. 



Hbabing, January 21, 1891. Decision, April 17, 1891. 

JuDD, C.J., McCuLLY, Bickerton, Dole, JJ. 

If a pound-keeper has not followed the statute in the aots required of him 
up to and including the sale, the owner of .the legally impounded 
animal, illegally sold, can recover its full value of the pound-keeper 
without allowance of pound fees and expenses. 

The pound-keeper delayed three days after the impounding before post- 
ing the notices. Under the statute requiring the notices to be posted 
*' as soon as possible after the impounding, " the statute was not com- 
plied with. " As soon as possible " means ** within a reasonable time, 
with an undertaking to do it within the shortest practicable time. ^ 

Opinion of the Court, by Dole, J. 

This action was brought in the District Court of Koolaupoko, 
Oahu, to recover damages laid at $250.00 for the illegal acts of 
the defendant, as the pound-keeper of the said district, in June 
last, in selling two horses of the plaintiff while in the pound, 
not taking proper care of them, improperly increasing the ex- 
penses on them and making unjust charges against the plain- 
tiff, in contravention of the law and the rights of the plaintiff. 

The horses sold for $101. Their value by the testimony was 
$190. The District Justice found this latter sum in favor of the 
plaintiff. The defendant appealed to a Justice of this Court at 
Chambers, and the case was tried on the facts by Mr. Justice 
Dole, who found the sale was illegal, as the pound-master ( de- 
fendant) did not post the statutory notices until three dayis 
after the impounding, and gave judgment for the amount the 
horses were sold for, not allowing pound fees or charges. 



KILA vs. KAHUHU. 213 

The defendant now brings his exceptions, alleging error in 
that : 

(1) ^' The complaint cannot contain a claim for the price of 
the horses and damage for illegal sale. " 

(2) ''There is no evidence on the part of the plaintiff and it 
is not proved that the sale was illegal. " 

Upon the first point the law is clear, that if the pound-keeper 
has not followed the statute in all the acts required of him up 
to and including the sale, the owner of a legally impounded 
animal, illegally sold, can recover its full value of the pound- 
keeper without allowance of pound fees and expenses. 

In the case before us the complaint is not skillfully drawn, 
but it seems to us to cover sufficiently the claim for damages 
for an illegal sale, although there are allegations of insufficient 
care of the animals and improper charges. These may be 
treated as surplusage. The Justice, to whose judgment excep- 
tion is taken, was of opinion, as above indicated, that the sale 
was illegal, in that as the statute required the notices to be 
posted ''as soon as possible after the impounding," to post them 
the third day after the impounding was not a compliance with 
the law. 

The decisive question in this case is whether the defendant's 
delay of three days before posting the notices required by law 
to be posted " as soon as possible after the impounding, " was 
within the statute. The notice referred to in the statute shall 
contain a full description of the estray with an announcement 
of the day on which it will be sold at public auction, if un- 
claimed, and must be posted " at the post office (if there be 
one in the district) and not less than two other public places " in 
the district ; and this must be done " as soon as possible after the 
impounding." 

We adopt the construction of the words " as soon as possible," 
on the authority of Hydraulic Eng, Co, vs. McHaffie, 4 L. R. Q . 
B. Div., 673 ; " To do a thing as soon as possible means to do it 
within a reasonable time, with an undertaking to do it within 
the shortest practicable time." Winfield, in his Adjudged Words 



214 JANUARY, 1891. 

and Phrases, defines ^* reasonable time " to mean ^^ as soon as 
circumstances permit." (p. 519). 

The defendant testified that ^* after three days the notices 
were put out." He does not say that it took him three days to 
post them, but *' after three days they were put out." He gives 
no reason for the delay. So far as the Court is informed^ he 
made no move and took no action whatever toward carrying out 
this statutory requirement until three days had elapsed, and 
then he woke up to the call of duty and proceeded to put out 
the notices. Was this '' the shortest practicable time," or wa£ 
it ^' as soon as circumstances permitted," the authoritative defi- 
nitions of the statutory words '^ as soon as possible ?" Clearly 
it was not. 

The defendant stated that ^' notices were placed in prominent 
places, one at the bottom of pali, one at Chinese store, one at 
Heeia." There is uq evidence as to the locality of the Chinese 
store, but as to Heeia and the foot of the pali, the distance be- 
tween them by the road is no obstacle to a man living at Heeia, 
which is defendant's place of residence, to posting notices in 
both places in one day, or in one forenoon for that matter, even 
if he had to go afoot, which is not likely with a Hawaiian ; and 
if the '^ Chinese store " was between these localities, as is proba- 
ble from the fact that in giving his testimony defendant places 
it between them in the sequence of his narrative, then no good 
reason can be easily imagined for putting off till the fourth day 
this important work. 

In a case like this a delay of three days before acting puts on 
the party complained of the necessity of introducing testimony 
that such delay was reasonable, t.«., that the duty was per- 
formed " as soon as circumstances permitted," or " within the 
shortest practicable time ; " failing to do this the Court has 
nothing before it to show that a delay, which is prima facie un- 
reasonable, is on account of some circumstance or other reason- 
able and necessary. 

In Commonwealth vs. Boston, 16 Pick., 448, the city was in- 
dicted for not putting in order a new public road in South 
Boston, authorized by statute ; the Court held that the city hav- 



KILA V8. KAHUHU. 215 

ing decided that the work of completing this road and making 
it passable as a street should be taken up, they were bound to 
complete it within a reasonable time of such conclusion ; and 
as to reasonable time, the Court said, *' if the city had intended 
to defend on the ground that they had proceeded and were pro- 
ceeding with reasonable diligence, to make and complete this 
highway, and that they had not had reasonable time after pass- 
ing the order to complete it, they should have set forth the facts 
necessary to maintain such defense that the Court might judge 
of them." 

The statute under which a pound-master is authorized to sell 
estrays must be construed strictly against him. The owner of 
the estrays is entitled to have the law strictly carried out. The 
law requires that estrays that are not claimed shall be sold at 
auction at noon on the first Saturday ensuing after the expira- 
tion of twelve days from the time of impounding. A delay of 
three days, therefore, in posting the notices materially dimin- 
ishes the owner's chances of being informed of the impounding 
of his animals and that they are liable to be sold to the highest 
bidder ; he is entitled to have the notices made according to 
law, that is, " as soon as possible," t. c, " within the shortest 
practicable time," i, c, " as soon as circumstances permit," after 
the impounding, for he or his friend may, passing along the 
road, on the second or third day, be in a position to see the 
notices that ought to be there, and miss seeing them, because of 
an unwarrantable delay in posting them, and so he be injured 
in his property. 

We are satisfied that a delay of three days is not in accord- 
ance with the statute unless good reasons be shown for such 
delay, which has not been done in this case. 

" It is incumbent on the defendant to show that all his pro- 
ceedings have been in entire conformity with the provisions of 
these statutes, and any failures in this respect, being an abuse 
of authority given him by law, will make him a trespasser ab 
initio" Smith V8. Oatea, 21 Pick., 56 ; Merrick vs. Work, 10 
Allen, 544 ; Sherman vs. Brannan, 13 Met., 407. We are there- 
fore of the opinion that the sale was illegal and that the plain- 



216 JANUARY, 1891. 

tiff is entitled to the full value of his horses at the time of sale 
without offset for pound fees. 

Exceptions overruled, 

W. R. Castle, for plaintiff. 

/. L, Kaulukou and J, A Magooriy for defendant. 



IN THE MATTER OF W. C. ACHI, Attorney at Law. 

Complaint for Misconduct. 

Hearing, January 31, 1891. Decision, February 6, 1891. 

JuDD^ C.J., McCuLLY, Bickerton, Dole, JJ. 

The facts, upon whioh the alleged nusoondnot of an attorney is based, not 
having been an issue in a case passed upon by the Court, and not oc- 
curring in the presence of the Court, the attorney is entitled to have 
speciflo charges preferred against him, and an opportunity for meet- 
ing them. 

Opinion of the Court, by Judd, C.J. 

During the trial of a cause in this Court at the January 
Term, 1891, a witness gave some evidence alleging misconduct 
on the part of W. C. Achi, Esq., an attorney of this Court. He 
was notified orally by the Presiding Justice to appear on the 
last day of the Term and answer the charges made by the wit- 
ness, as shown by the minutes of the evidence taken. Mr. 
Achi appeared, and his counsel moved the Court for a more 
specific charge. 

We are of opinion that this motion should be granted. 
The statute under which the Court is empowered to admit per- 
sons to practice prescribes, also, that ' 'practitioners shall be 
summarily amenable to the Courts of record, and may be fined, 
imprisoned or dismissed from the roll of practitioners for satis- 
factory cause, upon complaint of parties aggrieved by their mal- 
practice, or for non-payment of moneys collected by them for 



IN RE ACHI. 217 

private partiee, or for any deceit or other gross misconduct." 
Comp. Laws, p. 312. 

In the case before us the alleged misconduct was not com- 
mitted in open Court, nor is there before us any formal com- 
plaint by a party aggrieved thereby. 

It is not essential to the administration of the disciplinary 
power of the Court over its licensed practitioners that a formal 
complaint be made in every case by a party aggrieved. The 
matter may come to the notice of the Court in the progress of a 
trial. Ordinarily, the Court would call the attention of the 
Attorney-General to the matter, and request that charges be 
preferred, which being done, a rule to show cause would issue. 
But where the Court has heard a case based upon misconduct 
of an attorney, and has passed upon the facts, an order to show 
cause, based upon the decree, could issue without the interven- 
tion of the Attorney-General. In the Matter of Oeo, W. Wool, 
36 Mich., 300. 

The attorney is entitled to have the proofs sustaining the al- 
leged misconduct presented, and be afforded an opportunity of 
meeting them. The principles laid down in The Matter of El- 
dridge, 82 N. Y., 161, Matter of H. Boluss, 28 Mich., 607, and 
Matter of Millsy 1 Mich., 393, are ample authority for this prac- 
tice, and it accords with the precedents in this Court. 

The facts, upon which the alleged misconduct is based, not 
having been an issue in a case passed upon by the Court, and 
not occurring in the presence of the Court, the Court requests 
the Attorney-General to prefer specific charges against the at- 
torney, upon which a rule to show cause may issue. 

L. A. Thurston, for the motion. 



218 JANUARY, 1891, 



T. MAY et al. V8. ALFRED WILLIS, Bishop of Honolulu. 

MANDABiUB. 

Hearing, January 31, 1891. Decision, February 13, 1891.^ 

JUDD, C.J,, McCULLY AND DoLE, JJ. 

A peremptory writ of mandamus issues, as a matter of course, after a de- 
cision directing it to be issued. 

If the issue of such a writ is delayed, when it is issued it relates back to 
the time of filing the decision directing it to be issued. 

In case of such delay and a performance of the substance of the command 
of the writ before it is issued, such performance would be a sufficient 
answer to a prosecution for contempt for violation of the writ. 

Opinion of the Court, by Dole, J. 

In the regular progress of the above entitled cause, a decision 
was filed by this Court on the 28th day of October last, direct- 
ing that a peremptory writ of mandamus be issued to the re- 
spondent, ^^commanding him to call a meeting of the trustees 
of the Anglican Church in Hawaii, a corporation, forthwith, for 
the consideration of the advisability of removing the building 
in the cathedral precincts of the said corporation, at present in 
close proximity to the church building in course of construc- 
tion for the Chinese congregation. {Ante, page 178) 

On January 2lBt a motion was filed by the petitioners ^'that 
a peremptory mandamus be issued in accordance with the opin- 
ion of the Court filed herein." This motion was granted ex 
parte on the following day, it having been shown, however, 
that a copy of the motion and the affidavit supporting it had 
been duly served on the respondent. A peremptory writ of 
mandamus was forthwith issued and served on the respondent. 

On the 26th of January the respondent filed his motion that 
the Court vacate its order of January 22d for the issue of the 



MAY V8. WILLIS. 219 

writ, and that the writ be quashed upon substantially the fol- 
lowing grounds: 

That he was not allowed sufficient time to prepare to meet 
the motion that the writ be issued; that the affidavit support- 
ing such motion was misleading and deficient; that after the 
decision of the Court, made October 28th, 1890, directing that 
a temporary mandate be issued to respondent, and before such 
mandate was issued, he conformed to the decision of the Court 
and called the meeting in question; that the affidavit support- 
ing the motion of January 2l8t, for the issue of the peremptory 
writ, set forth the fact that such meeting was duly called and 
held, and that the action of the Court under the circumstances 
was erroneous in law. 

This motion was argued on the last day of the January Term, 
and is the present issue before the Court. 

As may be seen by the history of the proceedings above set 
forth; the original case was disposed of by the decision of Octo- 
ber 28th, and only required the issue of the peremptory writ 
thereby ordered to be fully terminated, a peremptory writ of 
mandamus being in the nature of a final judgment or decree. 
It was in order for the Clerk to issue the writ at any time after 
the decision directing it to be issued had been filed. This was 
the view the Court held when the motion of the petitioners 
came up, and the motion was granted rather because of the 
original decision of the Court that a peremptory writ be issued 
than on account of the motion or anything in the affidavit sup- 
porting it. From this standpoint the respondent was in no- 
wise prejudiced by his absence at the presentation of said mo- 
tion. 

Neither is he prejudiced by the issue of the writ subsequent 
to his performance of the duty which the Court had decided he 
ought to perform, and for which the peremptory writ was di- 
rected to be issued, if he has so performed it, for the writ is the 
product of the decision and is indissolubly connected with it, 
and if there is a delay in issuing it, as in the case before the 
Court, it has, when issued, a retrospective action relating back 
to the time when the decision was filed. Therefore, if proceed- 



220 JANUARY, 1891. 

ings in attachment ehould be brought against the respondent 
for violation of the writ, his showing that he had conformed to 
the substance of the command of the writ before the same was 
actually issued, in obedience to the conclusions of the Court as 
set forth in its decision directing the writ to be issued, would 
be a sufficient answer to such proceedings. 

The counsel for the respondent cited High's Extraordinary 
Legal Remedies, Section 551, as supporting his contention that 
the writ was improperly issued, because the act commanded 
was already performed. We find that this authority refers 
solely to the question of allowing a peremptory writ in case the 
return to the alternative writ shows that the act sought to be 
coerced has been performed. The case before the Court had 
passed this stage of proceedings, and the Court had directed the 
peremptory writ to be issued ; the issue of it thereafter was a 
matter of course. 

Section 552 of the same book was also cited to show that it 
was *^ error to issue a peremptory mandamus upon an ex parte 
application." This reference does not apply to the case, because, 
as we have shown above, the peremptory mandamus was issued 
in consequence of the decision of October 28th, and the respond- 
ent was present and was heard in the proceedings which led up 
to such decision. 

Respondent's counsel made the further point in his argu- 
ment that the writ having been issued in the name of His Late 
Majesty Kalakaua on the 22d of January, which was after his 
death, it is therefore void. We do not think that this is mat- 
ter for consideration on a motion to quash. If the writ is void 
there is no occasion for quashing it. Upon a prosecution for 
contempt for violation of the writ, it would be in order to de- 
fend on the ground that the writ was void. (Tapping on Man- 
damus, 445.) 

The motion is over-ruled. 

C W, Ashford, for the motion. 

F. M, Hatch, contra. 



IN RE BUSH. 221 



IN THE MATTER OF JOHN E. BUSH. 

Contempt of Court. 

Heabing, February 11, 1891. Decision, February 26, 1891. 

JuDD, C.J., Bickerton, and Dole, JJ. McCully J., Dissenting. 

A publication in a newspaper, that certain JnsticeB of this Conrt, now in 
office, are goilty of an unexpiated crime and therefore nnworthy to sit 
in jndgment upon others, is a ** publication of malicious invectiyes 
against the Court and tending to bring such Court and the adminis- 
tration of justice into ridicule, contempt, discredit or odium," and is 
punishable as a-contempt. 

Opinion op the Court, by Judd, C.J. 

Oq the sworn information of the Attorney-General, the res- 
pondent was cited to appear before the Court, to show cause 
why he should not be adjudged guilty of a contempt of Court 
for the publication of an article in a newspaper published in 
Honolulu, called ^^ Ka Leo o Ka Lahui," in its issue of February 
5th, instant. 

On the 11th of February respondent moved that the rule be 
discharged on the grounds : 

"1. The act complained of in the petition, upon which said 
rule is based, is not, in law, a contempt of Court for which this 
Court has power to punish this respondent. 

''2. This Court cannot legally punish as for a contempt a 
publication of the nature of that herein complained of, made in 
a newspaper and not done in the immediate presence of the 
Court. 

'* 8. No publication out of Court in relation to the Court or to 
any of its individual members amounts, in law, to a contempt, 
and the same cannot be punished as such. 



222 FEBRUARY, 1891. 

'' 4. It is nowhere alleged or intimated in said petition, or in 
the rule issued in pursuance thereof, that said publication was 
made while this Honorable Court was sitting as such, nor that 
said publication was designed, or calculated, or had any tenden- 
cy to obstruct, embarrass or prevent the due administration of 
justice. 

'^ 5. If this respondent were in &ct the publisher of, or legally 
responsible for said publication, which he doth in no wise ad- 
mit to be true, then such fact and offense involved therein are 
matters concerning which this respondent is by the Constitu- 
tion and the statute law entitled to a trial by a jury of his 
peers." 

By the Court. 

The Legislature of 1888 enacted that thereafter constructive 
contempts should not be punishable as such. It is 6laimed by 
the attorney for the Respondent that the publication of the arti- 
cle in question, if a contempt at all, is a constructive contempt, 
and is therefore not punishable. 

Contempts are generally divided by jurists into the classy of 
direct and constructive; direct being those committed in the 
presence of the Court, and constructive being those Acts which 
the Court would have to construe by some process of reasoning 
to be equivalent to a direct contempt. But the authorities 
agree in the main that in order to sustain the character of a 
constructive contempt, the publication must have a tendency 
to obstruct or hinder the progress of justice in some particular 
case. 

Were we to proceed alone upon the common law, the conten- 
tion of the counsel for respondent would seem to be sustained 
by authority. But we have a statute which, so far as we have 
learned, is peculiar to this country, and which describes and 
enumerates certain acts and circumstances as contempts and 
makes them punishable upon indictment and conviction by a 
jury and also summarily. These acts are not classified in the 
statute as direct and constructive contempts. Some of these 
acts would fall under one head and some under the other, as 



IN RE BUSH. 223 

generally classified. By our penal law, however, they are all 
contempts and punishable either summarily or v^pon indict- 
ment, or in both ways. 

The Legislature in enacting the law of 1888 had in mind, 
without doubt, the then recent cases decided by this Court in 
which certain publications, avowedly not of the character enu- 
merated in the Penal Code as contempts, were construed by the 
Court to be contempts, and these the Legislature declared to be 
no longer punishable as such. The first and third sections of 
the act of 1888 strengthen this view. 

The publication in question declares, in substance, that cer- 
tain Justices of this Court now in office are guilty of an unex- 
piated crime, and are therefore unworthy to sit in judgment 
upon others, thus attacking the Justices in the exercise of their 
judicial functions. This language fits exactly the words of the 
statute It is *' publishing of malicious invectives against a 
Court tending to bring such Court (and) or the administration 
of justice into ridicule, contempt, discredit or odium." We 
overrule the motion to discharge the Rule. 

Respondent to answer. 

Dissenting Opinion op McCully, J. 

The statute authority for treating this publication as a con- 
tempt of court is the clause in Section 18 of Chapter 29 of the 
Penal Code. Quoting from the semi-colon it reads thus : ^' or 
by knowingly publishing an unfair report of the proceedings of 
a court, or malicious invectives against a court or jury, tending 
to bring such court or jury or the administration of justice, into 
ridicule, contempt, discredit or odium, shall be punished," etc. 

It is contended by the Attorney-Gteneral, and it is the view of 
the Court, that these words, the latter part particularly, apply 
to the article published by the defendant, in that it tends to 
bring the court and the administration of justice into contempt, 
etc. But in my view they cannot be considered to apply to 
libelous words published in respect to the justices of the courts 
charging them with unfitness to hold office and try caseSi in a 
general way^ and not with reference to a pending case. Bishop 



224 FEBRUARY, 1891. 

on Crim. Law, Sec. 245, Vol. 2, gives this Bummary of doctrine: 
" According to the general doctrine any publication, whether by 
parties or strangers, which concerns a cause pending in court, 
and has a tendency to prejudice the public respecting its merits 
and to corrupt the administration of justice, or which reflects 
on the tribunal or its proceedings, or on the parties, the jurors, 
the witnesses or the counsel, may be visited as a contempt." 
This language is cited by Lawrence, C.J., in People vs. Wilson^ 
64 111., 213, as the common law definition. See also Bishop, 
Sec. 253 of Vol. 2. It is necessary, in order to bring the case at 
bar within our statute, to hold that it goes beyond the common 
law doctrine and beyond the usual statutes based upon the com- 
mon law. But these statutes have never extended the power of 
courts and judges in regard to contempts, but have rather 
limited that power. 

In my view, the context of our statute does not support a 
construction that publications charging a general unfitness or a 
general corruption of the persons holding the judicial office can 
be treated as contempts of court. And this view is confirmed 
by what I have quoted above as the common law doctrine, for 
I do not believe that a modern statute would have been allowed 
to extend a power somewhat odious. The section ( 18 ) refers 
in the beginning to a judge or justice in the lawful exercise of 
his judicial functions ; every other clause in it refers to proceed- 
ings in or of a court in pending business, unless the latter part 
of the clause first cited and relied upon in this case can be de- 
tached from all the rest of the section, and it closes by the pro- 
viso that every judicial tribunal acting as such, and levery 
magistrate acting by authority of law in a judicial capacity, 
may summarily punish for contempt. In the clause in ques- 
tion the term used is court (or jury), by which can only be 
understood the tribunal and not the personal judge, and that it 
is a malicious invective upon its proceeding and tending to 
bring the administration of justice in a case ( for only in cases 
as they occur do courts administer justice ) into contempt, ridi- 
cule, discredit or odium. It would certainly require some ex- 
plicit distinction from the other provisions of the section in 



IN RE BUSH. 225 

which it is incorporated, to show that it intende a distinct pro- 
vince of contempt. 

This article refers to no case and to no court in the exercise 
of its judicial functions. 

AUomey-Oeiieral Peterson, for Rule. 

C. W. Ashfordy for Respondent. 



March 3, 1891. 

It appearing from the evidence that the editor did not knowingly pnbhsh 
the article in the newspaper edited by him, the Gonrt considered the 
contempt purged. Want of knowledge would not relieve, if this was 
a prosecution for libeL 

Oral Judgment op the Court, by Dole, J., 

There were two law points which were raised at the last hear- 
ing, the first of which was in regard to the policy of a trial of 
this kind. We feel that it is a matter of discretion with us, 
and it is for the Court to say, whether it is desirable to take 
summary proceedings, or leave a case of this kind to take its 
course by indictment; and it seems to us not a very practical 
suggestion that a trial of this kind is going to affect a subse- 
quent trial by indictment, because there is no probability that 
a subsequent trial will take place. One would fulfill all the de- 
mands of the necessities of the case, and so that seems rather a 
fanciful objection. The law gives it fully into the power and 
discretion of the Court to act in this matter. 

In regard to the unconstitutionality of this kind of a trial we 
do not think that the section in the Constitution precludes us. 
And, gentlemen, it is not a matter which we are personally in- 
terested in in the least; we appear here o£Bicially, and an attack 
which affects us o£Bicially is a public matter which affects the 
power of the Court, a matter of great importance and of sa- 
cred character, which we are here to defend in our official and 

public capacity. We are not, therefore, personally interested 
16 



226 MARCH, 1891. 

in the matter in the sense in which it has been referred to in 
any way, and so we overrule that point also. 

In regard to the merits of the case we feel, frbm the evi- 
dence placed before us by Mr. Bush, that he has satisfactorily 
purged himself from the contempt which we felt was committed 
by the publication of the article referred to. If this was a trial 
by jury he would be entitled to the benefit of the doubt, and 
we are satisfied that he has shown to the Court that he has not 
knowingly published this article. 

This being a proceeding by statute, we are confined to the 
words of the law, which defines this offense as knowingly pub- 
lishing malicious invectives against a court or jury, tending to 
bring such court or jury, or the administration of justice, into 
ridicule, contempt, discredit or odium. The fact that it has not 
been published knowingly, although it has been published 
in his paper, we are satisfied, relieves him from the charge of 
contempt of court. 

If it had been a case of libel, Mr. Bush, want of knowledge 
would not relieve you; you would still be responsible in crimi- 
nal or civil proceedings. And we think that the management 
of your paper, in the way you have carried it on, is very dan- 
gerous and careless. 

You are dificharged from the contempt brought against you. 



KAHEANA vs. NALIMU. 227 



KAHEANA vs. NALIMU. 

Exceptions. 

Hearing, March 30, 1891. Decision, April 20, 1891. 

judd, c.j., mccully, bickerton, dole, jj. 

When the verdict in an action ot ejectment was for the poesession of land^ 
withont damages, the bond by defendant, on his motion for a new 
trial, not to remove property liable to execution, is not necessary. 

Opinion of the Court, by Judd, C.J. 

After hearing counsel, we have examined the decision ren- 
dered by Mr. Justice McCuUy on the 10th of February last, 
and hereby affirm the same and adopt its reasoning. 

Decision op McCully, J., Appealed From. 

The verdict being for the plaintiff, the defendant's counsel 
presents a motion for a' new trial. The plaintiff's counsel con- 
tends that the statute and the rule of Court in respect to mo- 
tions for a new trial have not been complied with, in that no 
bond to the plaintiff has been filed, and that therefore the mo- 
tion should not be entertained by the Court. 

The defendant has paid the costs accrued in the trial. He 
has deposited with the Clerk fifty dollars for costs to accrue on 
further proceedings, which he is allowed to do by Rule V. I 
deem the amount sufficient and that the rule may apply, al- 
though made primarily for such appeals as are described in 
Rule IV. So far, the defendant has complied with the rule. 
The motion for a new trial is brought on the ground of the ver- 
dict being contrary to the law and the evidence, for which the 
course is .prescribed in Rule VIII, subdivision B, and on the 
ground of newly discovered evidence, for which the course of 
proceeding is prescribed in subdivision C. In both, the defend- 



228 MARCH, 1891. 

ant has taken the prescribed steps of paying the costs accrued 
and securing the costs further to accrue. In both these divi- 
sions of the rule, which is explanatory of Section 1156, it is 
prescribed that the defendant shall also file a bond not to dis- 
pose of his property, and the case of Joliva vs. Kaulukou, 7 
Hawn., 731, interprets this to be a bond to the appellee and 
not to the Clerk, as the bond for costs may be. 

A literal following of the rule, the statute and the precedent 
would require that in this case a bond should have been filed 
in order to perfect the motion, but I am of opinion that the 
rule ^nd the statute do not in this respect apply to this case. 
The verdict of the jury was for an undivided half of the prem- 
ises, as claimed. No mesne profits were awarded. The judg- 
ment of the Court upon the verdict was for such moiety and six- 
ty-six 75-100 dollars for costs of suit, which have been paid. The 
language of the statute, Sec. 1156, is, "a bond • * * that he will 
not to the detriment of the plaintiff in the action remove or 
otherwise dispose of any property he may have liable to execu- 
tion on such judgment." In this case what is the liability for 
execution? It is not for the costs, for they have been paid, and 
not for damages, none having been given. The plaintiff can 
receive no detriment in any other respect than in regard to the 
land in controversy. But he has a verdict in his favor vesting 
the title in himself, the entry of judgment upon which verdict 
can only be suspended by the completion of a motion for a new 
trial. Civil Code, Sec. 1155. By the statutes of some of the 
States, and it would seem upon common law principle, "a judg- 
ment in ejectment is conclusive as to the right of possession 
against persons entering upon the land under, through, or in 
collusion with the defendant after the commencement of the ac- 
tion." Am. <fe Eng. Cyclop, of Law, vol. 12, p. 96. "A person 
entering under a defendant in ejectment after the commence- 
ment of the suit must of course be considered as taking and 
holding the possession, subject to the judgment to be rendered 
in the suit, though not made a party to it. In no other waj 
could the action of ejectment or any possessory action be made 
effective. Ortgen vs. Ross^ 47 111., 144. 



KANIKU V8. MONSARRAT. 229 

What, then, is the bond to secure in such a case as this? 
And if there is nothing to be secured and the plaintiff can take 
no detriment, can it be a reasonable construction of the statute 
and the rule to require a bond of security? Would not the 
writ of ix)sses8ion issue of right to the plaintiff at any time 
when the judgment ceased to be suspended by the prosecution 
for a new trial, and would not such writ avail summarily 
against any person claiming through the defendant since ver- 
dict rendered? My view of the statute and the rule is that 
they can be considered to apply only to verdicts and judg- 
ments which might be realized by execution and defeated by 
removal, or otherwise disposing of property, and are not appli- 
cable to a mere possessory judgment for real estate, wherein 
there is nothing to be secured and nothing to be lost. Cessante 
ratione legis, cessat ipsa lex. The reason of the law having 
faiied, the law itself becomes inoperative. 

Upon these considerations I hold that a bond is not required, 
and deny the motion to dismiss the application for a new trial. 
The parties will be heard on the merits of the principal motion. 

W. C. Achij for plaintiff. 

A, Rosuy for defendant. 



KANIKU V8. J. M. MONSARRAT. 

Exceptions. 
Hearing, March 30, 1891. Decision, April 20, 1891. 

JuDD, C.J., McCully, Btckerton, Dole, JJ. 

A bond by defendant to plaintiif for costs, on a motion for a new trial, is 
a snfficient oomplianoe with the Statute, Sec. 1156, of the Givil Code. 

Opinion of the Court, by Judd, C.J. 

Having fully considered this case, we hereby affirm and 
adopt the reasoning of Mr. Justice McCully in his decision, ren- 
dered on the 10th of February last. 



230 MARCH, 1891. 

Decision of McCully, J., Appealed From. 

The plaintiff having recovered, according to his claim for 
land, but without award of damages, the defendant files his 
motion for a new trial on sundry statute grounds. The plaint- 
iff's counsel contends that the motion should not be entertained 
by the Court, as not having been perfected as the statute and 
rules concerning motions for new trials require. 

It appears that the defendant has paid the Clerk of the Court 
all costs accrued, including attoruey-s fees. He has also filed a 
bond to the plaintiff in the sum of two hundred dollars, condi- 
tioned to pay all costs further to accrue in case he shall be de- 
feated in this proceeding, and that he will not to the detriment 
of the plaintiff in the action remove, or otherwise dispose of, 
any property he may have liable to execution on the judgment. 

In respect to the second of these conditions I have just ruled, 
in the case of Kaheana vs, Ncdimu {Ante^ page 227) which was 
argued together with this by the same counsel, that a bond not 
to remove property to the detriment of the plaintiff is not neces- 
sary in cases where the plaintiff has recovered the land merely, 
without damages, and in accordance with that holding it will 
not be necessary to consider any objections against the bond, 
treating it as something not required at all for this purpose. 

In the case of Joliva ve. Kaulukou, 7 Hawn., 731, there was 
no bond filed with the motion for a new trial, and, it would ap- 
pear, no deposit as allowed by Rule V. The Court further re- 
marks that the bond on the bill of exceptions (which is not in 
our case), should have been made to the appellee and not to the 
Clerk. I am unable to see anything in that case which will 
not permit the bond in this instance to fill the statute require- 
ment, the language of which it follows. 

I therefore overrule the motion to dismiss the motion for a 
new trial. The parties may be heard on this. 

W, C. Achi, et aJ., for plaintiff. 

A. Rosa^ for defendant. 



NAKUINA v». LOPEZ. 281 



EMMA M. NAKUINA vg. ANTONE LOPEZ. 

ft 

Exceptions. 
Heabing, Mabch 30, 1891. Decision, April 14, 1891. 

JUDD, C.J., McCULLY, BiCKERTON, DoLE, JJ. 

In an action of ejectment, the plaintifTs title being by porohase upon a 
foreolosore of mortgage, there appearing to be some variation be- 
tween the name of a foreign investment company as set forth in the 
mortgage and as registered in the office of the Interior Department: 

Held, that there being no donbt of the sale having been made in pursuance 
of mortgage executed by the mortgagor, the defendant could not 
(the corporation not being a party) sustain a contention which would 
invalidafe this mortgage. 

Opinion op the Court, by McCully, J. 

The point of law, upon which an exception was taken, is 
stated at large in the decision of the Trial Justice, which is ap- 
pended hereto. 

Upon examimation, we are of opinion that the defendant's 
exception was not well taken, for the reasons and on the au- 
thority cited in the decision, which we adopt as the opinion of 
the Court, and hereby overrule the exception. 

Decision op McCully, J., Appealed From. 

The action is ejectment. It is satisfactorily proved that the 
plaintiff purchased the premises in question under the fore- 
closure suit of the assignee of the alleged mortgagee. The de- 
fendant entered into possession, ^nd holds by a lease from the 
mortgagor made subsequent to the mortgage. The defendant 
by his counsel makes only the following contention in law: 
The mortgage was made to the ^'Hawaiian Investment and 
Agency Company, Limited," a foreign corporation carrying on 
business in the Hawaiian Kingdom. The plaintiff, in proof 



282 MARCH, 1891. 

of the existence and the authorization to do business in this 
Kingdom of this company, offered proofs of the performance 
of the statute requirements by a company styled the '* Western 
and Hawaiian Investment and Agency Company, Limited, 
etc." The defendant objected that the assignment of the mort- 
gage being made by the former named company was not done 
by a foreign corporation authorized to do business in this King- 
dom, whence no title passed to the assignee. 

I think this contention cannot be legally supported. It goes to 
the extent of claiming that the loans of this investment company 
are to >^ confiscated for the benefit of the mortgagors who have 
received the money and the concurrent mortgages are to be in- 
validated, on account of a variance in the title as filed in the 
office of the Minister of the Interior. There is no question but 
that the mortgage of the mortgagor, Frank Metcalf, to the cor- 
poration therein styled The Hawaiian Investment and Agency 
Company, is the one here produced in the original, with the ori- 
ginal assignments endorsed thereon, upon the foreclosure of 
which the plaintiff's title is based. The particular issue has 
therefore become re8 judicata by the decree of foreclosure. The 
investment company is not a party to this suit. Frank Met- 
calf, the mortgagor, could not set up the defense of the non-ex- 
istence of this corporation, or its non -capacity to transact busi- 
ness in this Kingdom, having admitted so much by transacting 
business with it. Topping vs. Bickford, 4 Allen, 120, in which 
Bigelow, J., says: '*The defendants, by giving their notes to 
the corporation ih their corporate name as payees, admitted 
their legal existence and capacity to make and enforce the con- 
tracts declared on, so far, at least, as to render proof unneces- 
sary in the opening of the plaintiff's case." And the defendant 
herein cannot make a defense for his possession which the mort- 
gagor could not make against the foreclosure. In any view of 
the case there appears to be a merely slight misnomer or change 
of name, and it is sufficiently proved that the company named 
in the mortgage is identical with the one which has filed its ar- 
ticles with the Minister of the Interior. "A contract entered 
into by a corporation under an assumed name may be enforced 



THE KING V8, GASPAR. 233 

by either of the parties. If the coatract is expressed in writing, 
and the identity of the corporation can be ascertained from the 
instrament itself, the misnomer is wholly unimportant, but if 
necessary other evidence may be introduced in order to estab- 
lish what company was intended." 2 Morawetz on Corpora- 
tions, Sec. 774. 

I hold that this defense is not supported in principle or by 
authority. There is no ground of fact contested. I decide in 
favor of the plaintiff and award damages of twenty-five dollars. 
Judgment may be entered accordingly. 

J. A. Magoon, for plaintiff. 

A, Rosa, for defendant. 



THE KING V8, J. R. GASPAR. 

Exceptions from Third Circuit Court. 

Hearing, March 30, 1891. Decision, April 9, 1891. 

JUDD, C. J., McCULLY, BiCKERTON, DoLE, JJ. 

The defendant being oharged with the illioit sale at Hilos Hawaii, of 
Bpiritnoas liquors, offered the defense that he was the servant of a 
licensed spirit dealer in Honolulu. 

Held, that the license of such dealer not being produced in Court, he was 
to be considered as unlioensed, by Complied Laws, page 699, Section 
35. 

Held, that the dealing of the defendant as a servant or agent of the licensed 
decJer in transferring or disposing of spirituous liquor is to be consid- 
ered an illicit sale, in view of the provisions of sections two and three 
of Chapter 67 of the Session Laws of 1888. 

Exceptions are overruled. 

Opinion of the Court, by McCully, J. 

The defendant was tried at the November Term, 1890, of the 
Third Judicial Circuit Court, on his appeal from a conviction in 
the Police Court of Hilo, of the offense of selling liquor without 



234 MARCH, 1891. 

a license. The liquor in qneBtion was a keg of wine sold to a 
Japanese, and the defense was that the defendant was merely an 
agent or servant of the Hawaiian Wine Company of Honolulu, 
or of F. Brown, the manager, receiving orders for their goods, 
forwarding the orders, and receiving and delivering the articles 
ordered. 

The evidence is joined to and made a part of the bill of ex- 
ceptions. 

. The first exception is taken to the instruction to the jury that 
^' the defendant claimed to act as the servant of F. Brown, who 
was a licensed dealer in liquors, but the license of said Brown is 
not produced in evidence. Under the statute you must find the 
defendant guilty." The statute referred to is Section 35 of an 
Act concerning the sale of spirituous liquors, found at page 699 
of the Complied Laws, viz., " In all proceedings against any 
persons for selling or allowing to be sold any spirituous liquor 
without a license, such person shall be deenled to be unlicensed, 
unless he shall at the hearing of the case produce his license." 
Against this positive statute prescription, the counsel for the 
defendant cites Act, which is Chapter 28 of the Session Laws of 
1890, which requires all persons holding a license for any class 
of business to keep it exposed to view in some prominent place 
on the licensed premises, under penalty of a fine. We are of 
opinion that it would not be a common sense construction of 
these laws to hold that a licensee should not take his license 
down from its place in his store and carry it into Court when 
the exhibition of it there is required in his defense upon a 
charge of misdemeanor in selling without such license. In the 
possible case of his being prosecuted under the latter statute, it 
would be a reasonable defense that he was at the time in ques- 
tion exhibiting it in Court. By no manner of construction does 
the latter statute repeal the former statute, which is a rule of 
evidence. The objects of the two statutes are not inconsistent 
but concurrent, namely, in both cases to show that a party is 
carrying on business under a license. 

This instruction of the Court was therefore correct, and upon 
this alone the verdict might have been sustained. But the 



THE KING V8. GA8PAR. 235 

other position taken by the defense should be discussed and set- 
tled in this case. 

The counsel for the Crown requested the Court to give the 
following instructions, which the Court gave: 

1. The license granted to the Hawaiian Wine Company for 
Frank Brown to sell spirituous liquors at a designated store in Ho- 
nolulu, does not authorize Gaspar to sell or deliver such liquors 
in Hilo. 

2. If Gaspar delivered this keg bf wine to the Japanese in 
Hilo and collected the money for it then, that is a sale within 
the meaning of the law, and any license to Mr. Frank Brown 
does not protect defendant. 

And the defendant asked for the following instruction : '' If 
the jury find that at the time of the sale of the keg of wine to 
the Japanese, the defendant was the servant of a licensed dealer, 
having no interest in the sale and delivery except as such ser- 
vant, and that the defendant in the course of his employment 
sent an order for said wine to the licensee who forwarded the 
wine to the defendant to be delivered, they will acquit," which 
requested instruction the Court refused to give. 

There is some confusion of language in the latter instruction. 
The first part of it imports that the defendant admitted that he 
had sold the keg of wine. He does not admit so much. He 
does not claim that under a spirit dealer's license for Honolulu, 
branch stores can be maintained or that persons can be authorized 
or employed by the licensee, at other places than his licensed 
place of business, to make sales, under the protection of his 
license, of goods sold, charged or consigned generally to such 
agent or servants. We may say that sales so made would be in 
plain contravention of the intent and eflect of a " dealer's spirit 
license." These licenses are among those which are subject to 
special police restriction. They are issued for a designated 
locality. They are restricted by the high terms of a payment 
of five hundred dollars and of a bond in the sum of one thous- 
and dollars. It is provided that no part of the liquor may be 
drank on the premises nor upon any contiguous premises in a 
house directly or indirectly under the control of the licensee. 



236 MARCH, 1891. 

The penalty of the bond may be forfeited if the licensee shall be 
convicted of f«lony, perjury or other infamous offense, or of any 
offense against or violation of the revenue laws, ot of any other 
offense under the statute concerning licenses which involves for- 
feiture. It is plain that the license permits the dealer to do the 
business for which be is licensed only at the place of business 
which is designated, if this police supervision is to be maintained. 

May not such dealer, upon the order of a customer resident in 
another part of the Kingdom, sell for cash or upon credit and 
forward or ship the goods to him? 

There is a statute specially applicable to this, and restricting 
it. Chapter 67 of the Session Laws of 1888, which is entitled An 
Act to Better Prevent Illicit Traffic in Spirituous Liquors, 
Sections 2 and 3 whereof entirely control the particular case at 
bar. Section 2 provides that no licensed peddler, trader or store- 
keeper, clerk or employee, shall forward to any other person any 
order for the purchase of spirituous liquors to be shipped or sent 
to or for the use of any other person than himself. And i^ection 
3 provides that '^ it shall be unlawful for any person, not being a 
licensed dealer in spirituous liquors or a common carrier of 
goods, to receive into or have in his possession, custody or control 
at any port outside the city of Honolulu, any spirituous liquor 
with intent to sell, transfer or dispose of such spirituous liquor 
or any part thereof to any other person or persons." Under 
this legislative construction of the intent and scope of the deal- 
er's license under which the defendant sought to protect 
himself, any such agency for the extension of the business of a 
dealer's license has been made illegal by statute, and not only 
sales, but the receipt of orders and transfer and delivery of spirit- 
uous liquors by an agent are made illegal acts. 

The instructions given were correct and the defendant's in- 
struction was properly denied. 

Exceptions overruled. 

Chas, Creighton, Deputy Attorney-General, for the Crown. 

Paul Neuniann, for the defendant. 



ISENBERG vs. CUMMINS. 237 



D. P. R. ISENBERG, W. H. CORNWELL and S. I. SHAW, 
Doing business as The Hawaiian Hotel Stables, vs. ELIZA- 

BETH K. CUMMINS. 

■ 

Exceptions. 
Hearing, March 30, 1891. Decision, May 1, 1891. 

JUDD, C.J., McCuLLY, BiCKERTON, DOLE, JJ. 

An infant who hires a horse for pleasure driving is not liable for damages 
fbr the death of a horse, it appearing that the horse died from immo- 
derate and careless driving merely, and not in oonseqaenoe of a will- 
ful tort on the part of the infant bailee. 

Opinion of Judd, C.J., and McCully, J. 

The facts of the case are substantially as follows : 
At about 2:30 o'clock on Sunday afternoon, the 21st Septem- 
ber, 1890, the defendant, then within k few days of her majority, 
engaged by telephone of the plaintiffs' stables a horse and phae- 
ton for a pleasure drive. There was nothing said as to the 
length of time of hiring or the particular course to be taken. 
The defendant drove the horse during the afternoon, having her 
sister in the phaeton with her, and part of the time a third pass- 
enger, and the horse was returned to the stables at about 6 p. m. 
in an exhausted condition. .The animal refused his food and 
though a veterinary surgeon was called in he died within three 
days, apparently from the overdriving. The drive was a long 
one, to the Park three times and back and up to Judd street 
and Kapalama, in all from 85 to 40 miles within the space of 
four hours. The horse was a free one and did not need whip- 
ping nor urging. There is no evidence that it was raced or 
cruelly treated, except that it was undoubtedly driven beyond 
its power of endurance. The defence set up was infancy. The 
verdict was for plaintiff, 1200 damages, and it is excepted to by 



288 MARCH, 1891. 

defendant as being contrary to the law and evidence. Under 
objection by the plaintiffs, the jury were instructed by the 
Court that " in order to hold the infant defendant they must 
find the injury to the animal to have been willfully and inten- 
tionally committed, but that they might find the willful intent 
from the surrounding circumstances and not necessarily from 
declarations, none such having been proved." 

The question is whether the evidence sustains the verdict or 
whether the jury clearly ignored the law. 

The law was correctly given to the jury : " To render an in- 
fant, who has hired a horse, liable in an action for trespass, he 
must do some willful and positive act which amounts to an 
election on his part to disaffirm the contract : a bare neglect to 
protect the animal from injury and return it at the time agreed 
upon is not sufficient." " If he willfully and intentionally in- 
jure the animal, an action of trespass will lie against him for 
the tort, but not if the injury complained of occurred in the act 
of driving the animal through his unskillfulness and want of 
knowledge, discretion and judgment." 

Moore vs, Eastman, 8 Supreme Court New York, 578. The 
Court in this case says : *' Acts however aggravated, which 
merely establish a breach of contract on the part of the infant, 
manifestly are insufficient. The plaintiff cannot convert any- 
thing that arises out of a contract into a tort and then seek to 
enforce the contract, through the medium of an action ex delicto. 
There must be a tort independent of the contract. • • • 
The tort cannot be predicated of a use of the animal in the 
course of his bailment, however excessive, unless the excess 
was such as to indicate that it was resorted to for a purpose be- 
yond that for which the horse was hired." 

In Eaton vs. HiU, 50 N.H., 235, the horse was hired by an 
infant for a short journey, who drove him so carelessly and im- 
moderately as to cause his death. The Court say : " When the 
infant stipulates for ordinary skill and care in the use of the 
thing bailed, but fails for want of skill and experience, and not 
from any wrongful intent, it is in accordance with the policy of 
the law that his privilege, based upon his want of capacity to 



1 



ISENBERG vs. CUMMINS. 239 

make and understand such contracts, should shield him." ^^We 
think then that the doctrine is well established, that an infant 
bailee of a hor^e is liable for any positive and willful tort done 
to the animal distinct from a mere breach of contract — as by 
driving to a place other than the one for which he hired, refus- 
ing to return him on demand after the time has expired, will- 
fully beating him to death, and the like ; so if he willfully and 
intentionally drive him at such an immoderate speed as to 
seriously endanger his life, knowing that it will do so." 

In this connection it must be remarked that in the case before 
us there is not only no tortious act of defendant proven, but 
her evidence and that of her fellow passengers is that there was 
nothing in the horse's condition during the drive to attract 
their attention; that they were laughing and having a good time 
and were not paying much attention to the horse. 

In Towne vs, Wiley, 23 Vt., 355, an infant hired a horse for 
the purpose of going to B. and returning the same day. He 
went to B., but returned by a circuitous route which nearly 
doubled the distance, and stopped at a house upon the way» 
leaving the horse without food or shelter from 8 o'clock in the 
evening until 4 o'clock the next morning ; and from this over- 
driving and exposure the horse died. It was held '^ that when 
property is bailed to an infant his infancy is a protection to 
him for any non-feasance, so long as he keeps within the terms 
of the bailment. But when he departs from the object of the 
bailment, it amounts to a conversion of the property, and he is 
liable to the same extent as if he had taken the property in the 
first instance without permission." The Court found the infant 
liable in damages for the death of the horse. There was a clear 
departure from the contract of hiring, for the bargain was for a 
trip to B. and return the same day, presumably by the ordinary 
route and not by the circuitous one taken, and this and the 
stopping over night was a conversion. The action was brought 
in trover, but the form of the action makes but little difference. 
In Jennings vs. Randall, 8 Term, 335, the Court held that a 
plaintiff cannot convert an action founded upon a contract into 
a tort, so as to charge an infant defendant. 



240 MARCH, 1891. 

The governing principle derived from the cases is this : an 
infant ( whether of tender years or near his majority, it makes 
no difference ) cannot be held liable on a contract : if the con- 
tract of bailment be made, however, by the infant and the im- 
plied stipulation, that ordinary skill and care will be used in 
the use of the thing bailed, is broken by want of skill, discretion 
and experience on the part of the infant, his infancy is a com- 
plete defense, even though his careless and immoderate use of 
the chattel within the lines of the bailment caused the injury 
or destruction of the chattel. An infant can only be held liable 
for his positive, willful and tortious act, and a careful review of 
the evidence in the case before us convinces us that nothing of 
this kind was shown to the jury, and therefore the verdict was 
wrong and should be reversed and a new trial ordered, which is 
done accordingly. 

0. L, Carter^ for plaintiffs. 

F, M, Hatch, for defendant. 



Ad infant who hires a horse for pleasure driving is liable in deaaageB for 
injury to the horse arising from immoderate driving, if it appears that 
the same was willful on her part. 

Evidence of age and exi)erienoe of the infant may be considered by the 
jury on the question of willful disregard of the implied stipulation for 
ordinary oare. 

Opinion of Bickerton and Dole, JJ., By Dole, J. 

We adopt the statement of the case from the opinion of the 
other two Justices, from whose conclusions, however, as to the 
law of the case we disagree. 

The charge of the Presiding Justice to the jury, that "in order 
to hold the infant defendant they must find the injury to the 
animal to have been willfully and intentionally committed, but 
that they might find the willful intent from the surrounding 
circumstances, and not necessarily from declarations, none such 
having been proved," was undoubtedly correct. 



ISENBERG m. CUMMINS. 241 

We find the following testimony, bearing on the injurious 
treatment of the horse, in the statement of evidence of the bill of 
exceptions. 

'* Very free horse ; was about medium on the bit ; would pull 
on the bit some ; was fit for a lady." (By S. I. Shaw, one of 
the plaintiffs.) 

"I was there when (horse) came in, 7:30 p. m.; was in very 
exhausted condition ; sweaty all over. He walked when he 
came in as if exhausted ; he hung his head. As soon as he got 
in the stall he lay down. He got up in a little while and lay 
down again. Would not take water ; ate a little manienie the 
next day. His mouth was dry when he came in. Defendant 
had had the horse several times before ; defendant has got horses 
from five or six times during two or three months previous to 
that date." (By J. Shaw.) 

" Am night watchman at Hawaiian Hotel Stables ; I recollect 
when the horse came in ; came in about six ; I noticed the horse 
was very tired ; something the matter with him ; not there over 
a minute when he lay down. Horse breathed hard ; would not 
eat ; would drink a swallow or two. Mouth was very dry when 
I washed it out." (J. W. Skinner.) 

" Am a veterinary surgeon ; saw the horse Sunday evening. 
He was in a state of great exhaustion ; remained so until he 
died. Saw him between 6 and 6:30 ; was in a box stall breath- 
ing rapidly ; tongue very parched ; pulse rapid and weak. I 
considered it a case of over-exertion ; no symptoms of founder- 
ing. Foundering comes from a hard drive on a hard roadv and 
being fed or watered before being cooled off. First symptom of 
foundering is a stiffening of gait ; high fever, rapid breathing, a 
dry mouth is symptom of fever in a horse. A rapid pulse is 
also a symptom of fever. Horses may live for a few days if 
over-exertion is the cause of death. They often drop dead. 
The pulse was very rapid and very weak. Horse forty-five to 
fifty pulse per minute. Young animal's pulse more rapid. 
This horse's pulse was over seventy at the time. I believe his 
bowels Were paralyzed. His spine seemed to be affected. In 

my opinion he died from over-driving. The night watchman 
16 



242 MARCH, 1891. 

pointed out several whip marks, and don't know how many, 
more than one." (By A. R. Rowat.) 

" Saw horse brought back tired ; almost fell down." (By 
Tom King.") 

" Received horse at my house after 2 p. m.; my residence is at 
Kewalo. Condition of horse was then somewhat heated up. 
Asked boy who fetched horse if he had driven it hard. I asked 
him because I saw horse's mouth was full of froth. I drove out 
to Waikiki with my sister. After that I drove home and was 
there about fifteen minutes ; thence went to ice-cream parlors 
and to Waikiki again. Picked up Ed. Stiles on the way. On 
return went up to Sam Ladd's ; was there about ten minutes. 
Thence to Judd street, down Liliha street to School street and then 
drove up..to slaughter house at Kalihi. From there out to Ka- 
piolani Park and back to house. When first went out to Wai- 
kiki horse was full of froth. Went home and rubbed it 
down, after which it became all right. I was eighteen last 
October. When Mr. Stiles jumped on I let him drive. We 
were all talking and laughing and having a good time and not 
paying any particular attention to the horse." (By E. K. Cum- 
mins, defendant.) * 

"Had charge of the horse when I jumped in; drove it slowly; 
whipped it occasionally, not hard." (By E. Stiles.) 

The question before us is, was there evidence in support of 
the verdict? 

The contract of an infant may not be enforced by the other 
party unless it is ajQBrmed by the infant upon becoming of age. 
But the principle is generally recognized that where an infant 
makes a contract by which he has the use of something for a 
time, and disafiirms the contract, he then becomes liable in tort 
to the other party for the article hired. 

In the case before the Court it was necessary, before the jury 
could find for the plaintiff, that there should be evidence show- 
ing a disaffirmance of the contract on the part of the defendant. 
Is there such evidence? 

A contract of hiring, like the one in question, implies a oove- 
nant to exercise ordinary care and skill to protect the animal 



ISENBERG V8. CUMMINS. 243 

from injury. If the evidence shows that the infant, after ob- 
taining possession of a horse under such contract, willfully 
abuses and injures it, it is a tort and he is liable for it. 1 Par- 
sons on Contracts, 263. In the case of Wentworth V8. McDuffie^ 
48 N. H., 402, which was an action of trover against an adult 
for driving a hired horse so immoderately that she died, the 
Court held that "the act of the bailee in willfully and intention- 
ally driving the horse at such an immoderate rate of speed as 
he knew would seriously endanger the life of the horse is at 
least as marked an assumption of ownership and as substantial 
an invasion of the bailor's right of property as the act of driv- 
ing the horse at a moderate rate of speed one mile beyond the 
place named in the contract of hiring." This applies to the case 
before us, for the defendant being an infant does not affect the 
principle of this authority, infants being liable for torts. The 
defendant hired the horse under an implied stipulation for or- 
dinary care and diligence to protect the horse from injury. She 
was not limited by the contract as to time or distance. If she 
willfully drove the horse such a distance at such a speed as was 
likely to injure him, and he was so injured, it was a conversion, 
and she was liable. Whether she willfully so drove the horse 
was a question for the jury on the evidence, if there was evi- 
dence on this point. The counsel for ■ the defense argues that 
there was no such evidence submitted to the jury, and claims 
that if the injury resulted from overdriving, it was on account 
of want of judgment, or from heedlessness and want of knowl- 
edge. 

That part of the evidence quoted above shows that the de- 
fendant was within a few weeks of being of age, and that she 
was accustomed to take out driving horses; the evidence that 
she noticed the condition of the horse when it was delivered to 
her, and that after her first trip to Waikiki, noticing that the 
horse was "full of froth," she went home and had it rubbed 
down, shows that to some extent she understood the care of 
horses. Here was evidence directly bearing on the defense of 
heedlessness and want of experience and judgment. Together 
with this, and as bearing on the same question, the question 



244 MARCH, 1891. 

whether the injury resulted from willfulness or a want of dis- 
cretion, is the other evidence of injurious treatment, substan- 
tially as follows: A free horse, pulling some on the bit, is driven 
in about three'hours and a half to Waikiki, back to Honolulu, 
to Waikiki again, back to Honolulu, up^ to Judd street, down 
Liliha street and out King street to the slaughter-houses at Ka- 
hili, thence to Kapiolani park and back to Honolulu, is occa- 
sionally whipped during the driving, is returned to the owners 
in a state of great exhaustion and high fever, and in three days 
dies in consequence of over-driving, in the opinion of the sur- 
geon who attended him. 

From this evidence, both of improper treatment and of knowl- 
edge and discretion on the part of the defendant, the jury ren- 
dered a verdict for the plaintiff. We are satisfied that there was 
evidence before them which justified them in presuming that 
the injury was willful. 

"It seems on principle that where a particular intention, 
knowledge or state of mind in the person charged as a wrong- 
doer, is an element, as it sometimes is, in constituting the al. 
leged wrong, the age and mental capacity of the person may 

and should be taken into account, along with other relevant 

> 

circumstances, in order to ascertain as a fact whether that in- 
tention, knowledge, or state of mind was present." 6 Pollock's 
Law of Torts, 35. 

The decision appealed from, overruling the motion for a new 
trial, should be sustained. 



Note. — The Court being equally divided on the question of 
the liability of thcL defendant, the verdict of the jury stands. 



KAMAKAOHUA vs, THOW CHOY. 245 



KAMAKAOHUA (w.) vs. THOW CHOY. 

Exceptions. 
Hbarino, March 31, 1891. Decision, April 4, 1891. 

JUDD, C.J., McGULLY, BiCKERTON, DoLE, JJ. 

The defendant took into his possession some horses, etc., which were 
claimed by the plaintiff (the wife of the bankrupt) to be her own 
property, she having acquired them previous to the year 1888. 

Held, that the property was her husband's, and was part of the assets of 
the bankrupt estate. 

Opinion of the Court, by Bickerton, J. 

This case was tried at the January Term, 1891, and the Pre- 
siding Justice directed a verdict for the defendant. The plaint- 
iff excepted to the charge of the Court and also to the verdict, 
as contrary to the law and the evidence, and gave notice of a 
motion for a new trial, which motion on being heard was over- 
ruled, and the matter now comes here on a bill of exceptions. 

The plaintiff claims that the defendant, as assignee in bank- 
ruptcy of her husband's estate, unjustly seized and took into 
his possession three horses and a cart; that they were her own 
property by exchange and purchase with her own money ; that 
she acquired these animals before the year 1888, about the years 
1884 and 1886; that her husband had never reduced this prop- 
erty in dispute to his possession or asserted his rights to said 
chattels. The defendant claimed that these chattels were the 
property of the bankrupt and are part of the assets of his estate. 

In June, 1888, an Act relating to the property and rights of 
married women was approved and became law. It provides, 
inter alia, that "the real and personal property of a woman 
shall, upon her marriage, remain her separate property, free 
from the management, control, debts and obligations of her hus- 



246 MARCH, 1891. 

band; and a maried woman may receive, receipt for, hold, man- 
age and dispose of property, real and personal, in the same 
manner as if she were sole." * ♦ * « Section 13 reads, 
"Nothing in this Act contained shall affect ariy rights of prop- 
erty which shall have already accrued under any law heretofore 
in existence." It is not claimed nor is it shown that any of 
this property was acquired after the Act of 1888 came into force, 
so the law as it stood previous to • the said Act must apply to 
this case; there is no necessity to go outside of our own reports 
for this, for it is clearly laid down in Riememchneider vs. Kalae- 
hao, 5 Hawn., 550. In that case the Court charged the jury as 
follows: "If you find that those hacks, etc., were bought with 
money received from her (t. e., intestate's wife) lands and from 
the earnings of her horses and carriages subsequently, you will 
find them to be the property of her husband. Anything in her 
possession, whether bought with her own or her husband!^ 
money, belongs to him and is his own property, and goes to his 
administrators." In regard to the exception taken to this in- 
struction, the Court says: "We think that the jury were prop- 
erly instructed." 

This case controls the case before us, and lays down the law 
as we understand it to have been previous to the Act of 1888. 
The fact being established by the evidence that the acquisition 
of the property by the plaintiff was prior to 1888, we are of 
opinion that the jury were properly instructed and that the evi- 
dence supports the verdict. The Presiding Justice in this case 
remarked in his charge to the jury, "A verdict for the plaintiff 
would be set aside as being contrary to the law." We are of 
the same opinion. 

The exceptions are overruled. 

/. M, Davidson, for plaintiff. 

C. W. Ashfordf for defendant. 



PERRY V8. LUDLOFF. 247 



PERRY vs. LUDLOFF. 

Exceptions. 
Hearing, March 31, 1891. Decision, April 8, 1891. 

JUDD, C.J., McCULLY, BiCKERTON, DoLE, JJ. 

If a qneetion to a witness is objected to as leading, it should be reported 
in the exceptions exactly in the form in which it was proposed to the 
witness. 

When an error in admitting or refusing testimony is alleged to have been 
made, judgment will not be reversed if the error could not affect the 
result. 

Opinion of the Court, by Judd, C.J. 

This is an action of assumpsit for rent of a dairy in Manoa 
Valley, Honolulu. The plaintiff obtained judgment for $180.00 
and costs, etc., in the Police Court of Honolulu. The defendant 
then appealed to a Justice of this Court sitting in Chambers, 
and the case was heard de novo on the issues of fact involved. 
Mr. Justice Dole, who heard the case, affirmed the judgment of 
the Police Court. The plaintiff has no further appeal on the 
facts. He now excepts to the decision rendered and alleges as 
error that the Court sustained an objection to a " question to H. 
Ludloff in the course of his direct examination, asked bv defend- 
ants' counsel, with reference to statements alleged to have been 
made by Perry to the defendants, to the effect that plaintiff 
offered to take the dairy back and allow Albert and Richard 
(Ludloff) their wages to that date — on the ground of its being 
a leading question." 

It is impossible for us to ascertain from the form of the above 
exception whether the question was in fact a leading one and 
objectionable on that ground. The question should have been 
reported to us in the exact form in which it was proposed to be 



248 MARCH, 1891. 

put to the witness. We are left to conjecture as to its nature. 
If it was desired by defendants' counsel to rebut by this ques- 
tion a denial previously given in evidence by Perry to H. Lud- 
loff, it would not be objectionable to ask the rebutting witness 
the direct question if such and such statement had been made 
by Perry. But if the question had been allowed to be put and 
it was answered by H. Ludloflf, to the effect that Perry had made 
such a statement, we fail to see that it could have any substan- 
tial eflFect on the result of the case. It would perhaps tend to 
discredit Perry's testimony; but an inspection of the evidence 
sent up discloses that the real issue was whether a promise had 
been made by defendants to pay $180 for the use of the dairy 
for the month of December, 1890. This did not depend upon 
the testimony of Perry, but was proved to the satisfaction of the 
Court by other testimony. Where the error made (if any was 
made) cannot affect the result of the case, the judgment will not 
be reversed on this ground and a new trial ordered. 

The remaining exceptions are: 

2d. That the existence of a partnership was not proved. 

3rd. That plaintiff failed to prove any agreement on the 
part of Otto Ludloff to pay said rent. 

4th. That plaintiff failed to prove any contract for the pay- 
ment of said rent. 

5th. That said judgment was contrary to law and evidence. 

A review of the evidence sent up shows that there was suffi- 
cient upon which to base the findings of fact made, and this 
being the case the exceptions are overruled. 

/. M, Davidson^ for plaintiff, 

J. A. Magoon, for defendant. 



I 



WONG LEONG vs. PIERCE. 249 



WONG LEONG vs, S. E. PIERCE, Administrator Estate 

of A. S. Bolster. 

Appeal from Dole, J. 
Hearing, March 31, 1891. Decision, April 14, 1891. 

judd, c.j., mccully, bickerton, dole, jj. 

The estate of a deceased hnsband is not bonnd, after his death, by an im- 
plied covenant for quiet enjoyment in a lease made by the husband of 
the wife^s land. Such a lease was only good during the husband's 
life, and the lessee had notice from the lease itself of its duration. 

Opinion of the Court, by Judd, C.J. 

During the lifetime of A. S. Bolster, he joined with his wife 
in a lease of a parcel of her real estate to the plaintiflfs grantor. 
Before this lease expired it was extended by husband and wife 
in favor of Wong Leong & Co., for an additional term of ten 
years from January Ist, 1887, the date of the expiration of the 
original lease. Bolster died December 5th, 1889, and in the 
April term of the Supreme Court of the next year the plaintiff 
was sued in ejectment by third parties, to- wit, Opiopio (w.) 
and others, for the possession of the premises he held by virtue 
of the said lease and extension. In the meantime L. T. Valen- 
tine had been appointed administrator of Bolster's estate, and 
he requested plaintiff, through his attorney, to defend the suit 
and promised to make up to him whatever expenses he should 
incur in so doing. The plaintiff, in accordance with such re- 
quest, assumed the defense of the case, which was decided 
against him, and paid out $100 for counsel and $208.70 upon 
execution of the judgment therein. The administrator left the 
country in April, and defendant was appointed administrator 
October 3d, 1890. 



250 MARCH, 1891. 

The case comes to us on the following points of law : 

Ist. That the suit should have been brought in the name of 
Wong Leong & Company, they being the lessees under the ex- 
tension of the lease, and not in the name of Wong Leong. 

2d. That the estate of the deceased A. S. Bolster is not liable, 
because the land leased belonged to the wife, and the husband's 
interest therein ceased at his death, and because the ouster 
upon which this claim is based did not take place until after 
the death of Bolster. 

3d. That if the husband's estate is liable for any" portion of 
the amount claimed, the wife, Caroline K. Bolster, should have 
been joined in the suit as co-defendant. 

4th. That this claim against the estate of deceased is barred 
by law, the same not having been presented and made in time. 

5th. That Valentine as administrator had no authority in 
law to bind the estate to pay counsel's fee or any other amount 
to Wong Leong, 

The crucial question in this case is whether the estate of A. S. 
Bolster is liable — the land leased belonging to his wife and the 
ouster of the lessee not occurring until after Bolster's death. 
At the time the lease and the extension thereof were executed, 
the law gave Bolster the right to rent, " with her written con- 
sent, his wife's land for any term not exceeding the term of his 
natural life." The lease is between A. S. Bolster of the one part, 
and Aho of the other part, whereby Bolster demises and leases, 
etc., the land to the said Aho. It concludes with these words, 
" and 1, Caroline K. Bolster, wife of the said A. S. Bolster, hold- 
ing the above leased premises in my own right as the heir at 
law of Kekoahaleole, deceased, the patentee, hereby consent to 
the terms and conditions of the above lease. Witness our hands 
and seals, etc." The extension is made to Wong Leong & Co., 
" the assignee of the within lease." The lease, then, was made 
in strict accord with the statute and apprised the lessee of the 
extent of Mr. Bolster's title. 

It is fundamental law that a covenant for quiet enjoyment 
may be implied from words of grant in a deed and of demise in 
a lease. The action is brought, not in covenant against the 



WONG LEONG vs. PIERCE. 261 

administrator, but in assumpsit upon his request to the lessee 
to defend the suit (which resulted in his eviction) and his 
(administrator's) promise to pay the damages, costs and coun- 
sel fees in case the suit was lost. But it is admitted that the 
administrator could not bind the estate by his promise unless 
the estate was in law liable. We therefore come back to the 
primary question : Is the estate of the husband bound after the 
husband's death by an implied covenant in a lease made by the 
husband of his wife's land ? 

There is no doubt that " a covenant for quiet enjoyment runs 
with the land, whether any estate remains in the covenantors 
or not." Quoted in the decision appealed from, Campbell V8, 
Lewis ^ 3 B. &. A., 892. But in this case there was an express 
covenant by A, and the Court held A (who had possession of 
the premises for a period of years) liable on his covenant to B, 
at the suit of C, . to whom B had assigned the lease ; C was 
evicted by J. S., the lessor, for a breach committed by A pre- 
vious to the assignment to B. The Court sustained the action 
against A upon the covenant for quiet enjoyment, on the ground 
of privity of estate between A and C. 

The policy of the law is not to extend implied covenants. 
In Rawle on Covenants for Title, Section 275, the author says: 
" Nor, it would seem, will the covenant implied in the creation 
of a leasehold endure longer than during the continuance of the 
estate out of which it is granted." Thus in an old case {Swan 
V8, Searles, Dyer, 257a) a tenant for life having made a lease by 
the word demise, the lessee was after the death of the tenant for 
life, and before the effluxion of the term, evicted by the remain- 
derman and brought covenant against the executors of the lessor, 
but it was hold that the " covenant in law ends and determines 
with the estate and interest of the lessor." 

In Adams vs, Gibney, 6 Bing., 656, Tindal, C. J., referring to 
Swan V8, Searles approvingly, and also to Bragg vs. Wiseman (an 
old case and not accessible to us) where covenant is brought 
against the executor of the husband upon a lease by husband 
and wife, it was laid down, "That a covenant in law shall not 
be extended to make one do more than he can, which was to 



252 MARCH,, 1891. 

> 

warrant it as long as he lived and no longer." In Adams r». 
Oibney the question was : tenant for life, remainder over, de- 
mises to the lessee, his executors, etc., for the term of \fifteen 
years, without any express covenant for quiet enjoyment; the 
lessee is evicted by the remainderman, after the death of the 
tenant for life, but before the expiration of the fifteen years; 
whether the lessee can maintain an action of covenant against 
the executor of tenant for life in respect of such eviction. The 
learned Chief Justice held that he could not, and adds, "No in- 
justice can be occasioned to the lessee by this decision, who 
must have learned from the .form of the reservation in the lease 
that his lessor was no more than a tenant- for life, but was con- 
tented to accept a lease without an express covenant for quiet 
enjoyment." 

In the case before us the law gave the right to Bolster to lease 
his wife's land for the term of his own life. Why was he not, so 
far as the lessee was concerned, a tenant for life? That was cer- 
tainly the quality and duration of his estate, of which the lessee 
had notice by the indenture itself. The law implied a covenant 
by the use of words of demise on the part of Bolster, that the 
lessee should have quiet enjoyment of the premises so long as 
he (Bolster) lived, and no longer. Such is our opinion of this 
case, upon reason and authority. 

It does not become necessary to pass upon the other points in 
the case, except to say that they were properly overruled below. 
The estate of Bolster not being bound in law on the implied 
covenant, the administrator's promise does not bind it. 

The judgment below is reversed, and judgment may be had 
for the defendant. 

W, R, Castle, for plaintiff. 

C. Creighton, for defendant. 



1 



BANKRUPTCY OF GOUVEIA. 253 



BANKRUPTCY OF M. de GOUVEIA. 
Appeal from Bickerton, J. 

Hearing, March 31, 1891. Decision, April 17, 1891. 

JuDD, C.J., McCuLLY, .Bickerton, Dole, JJ. 

The Justioe below deolined, **for the present/' to discharge the bankrupt. 

Held, that as this decision was not final, the appeal therefrom must be 
dismissed. 

Opinion op the Court, by Judd, C.J. 

Manoel de Gouveia, of Holualoa, North Kona, Hawaii, was 
on the 6th March, 1890, upon the petition of some of his credi- 
tors, adjudged a bankrupt. An assignee was elected, but 
scarcely any progress has been made in settling the estate, as 
its affairs seem to be very much involved. 

On the 21st January, 1891, the bankrupt filed his petition 
for discharge. Due notice was given of the hearing as required 
by statute, and at the hearing the discharge was opposed by the 
assignee, D. Dayton, and by two of the creditors, who severally 
filed specifications in writing of the grounds of their opposition. 
Mr. Justice Bickerton heard the application and objections 
thereto, and on the 14th March filed a decision declining for 
the present to grant the discharge of the petitioner. From this 
the petitioner appeals to this Court. 

His counsel, C. W. Ashford, contends that as his sworn 
petition sets forth that he has not done any of the acts nor 
omitted to comply with the requirements set forth specifi- 
cally in Section 17 of the Bankruptcy Act of 1884, he is 
entitled to his discharge as a matter of right. This section 
reads, "No discharge shall be granted, or if granted be valid, 
in any of the following cases," stating the acts which, if 
committed by the bankrupt, would debar him from obtaining 



254 MARCHj 1891. 

a discharge. And Section 20 of the Act reads, **If it shall ap- 
pear to the Justice that the bankrupt has in all things com- 
plied with the requirements of this Act, and that under the 
provisions thereof he is entitled to a discharge, the Court shall 
grant him a discharge from all his debts, etc." It would seem 
that this contention was correct, but the Justice below has not 
passed upon the merits of the objections made by the opposing 
creditors, and has not made a final decision declining to grant 
the discharge on the ground that the bankrupt had not com- 
plied with the statutory requirements. 

The Justice found that the bankrupt's dealings with a firm 
in Kona, named Coerper & Strauch, now bankrupt, and a cor- 
poration called the Kona Sugar Co., were so complicated that it 
would be unjust to the creditors of the bankrupt to discharge 
him until these matters were investigated. The assignee also 
resists the application. He is entitled to the bankrupt's assis- 
tance in unraveling this tangle. The decision appealed from 
is not final and does not purport to be so. 

For this reason the appeal is dismissed. 

C. W. Aahfordj for petitioner. 

0. L. Carter, for opposing creditors and assignee. 



M. A. GONSALVES vs. C. L. BRITO, A. M. BETENCOURT, 
M. A. PEREIRA, M. J. PREITAS, M. A. PEIXOTO, 
and M. QUADRAS. 

Motion to Strike from Calendar. 
Hearing, March 31, 1891. Decision, April 20, 1891. 

JUDD, C.J., McCULLY, BlCiCERTON, DoLF, JJ. 

Upon a motion for a new trial, after verdict rendered in damages, the de- 
fendants' bond to plaintiff not to remoTe or disiKMte of, to his detri- 
ment, any property they may have liable to execution on jadgment, 
(Civil Code, See. 1156) mnst be in a sum not less than the amoont of 
the Ytf diet. 



GONSALVES vs, BRITO. 265 

Opinion of the Court, by Dole, J. 

A verdict was rendered against the defendants in an action 
for publishing a libel, at the last October Term of this Court, 
for three thousand dollars damages, to which they excepted, and 
filed a motion for a new trial, upon several grounds. A bond 
to the plaintiff was filed with this motion, in the sum of two 
hundred dollars, conditioned upon the payment of costs further 
to accrue, and the non-removal and disposition to the detriment 
of the plaintiff of property held by the defendants liable to ex- 
ecution under the judgment upon such verdict. 

The motion for a new trial was overruled by Chief Justice 
Judd, on the third day of March last, to which decision the de- 
fendants filed .their bill of exceptions, with a bond for one hun- 
dred dollars, to the Clerk of Court, similarly conditioned with 
the first bond. 

The plaintiff, after the opening of the term, filed a motion to 
strike the cause from the calendar for the following reasons: 
" That the bill of exceptions does not embody the testimony," 
and " that the defendants have not filed a sufiicient bond con- 
ditioned that they will not to the detriment of the plaintiff 
remove or otherwise dispose of any property they may have lia- 
ble to execution on judgment." 

We allow the motion upon the second ground; it being clear 
to us that a *' sufficient" bond of security, conditioned that de- 
fendants will not to the detriment of the plaintiff in the action 
remove or otherwise dispose of any property they may have 
liable to execution under the judgment rendered in the proceed- 
ings, which is the requirement of the statute (Civil Code, Sec- 
tion 1156) can be for no less amount than the amount of the 
verdict rendered, if in money, as is the case in these proceed- 
ceedings. A bond in the sum of two hundred dollars, that the 
defendants will not, to the detriment of the plaintiff, remove or 
dispose of any property they may have liable to execution under 
a judgment of three thousand dollars, cannot be imagined to be 
a " sufficient bond of security." 

This interpretation of the statute was definitely announced in 



256 MARCH, 1891. 

the case of Joliva vs, KauhikoUj 7 Hawn., 733, and we here more 
fully and poeitively reiterate it. 

F. Af. Hatch and W. 0, Smith, for plaintiff. 

A. Rosa and J, M. Davidson, for defendants. 



KAILIANU (w.) and LEA (w.) vs. LUMAI (k.) and 

KAUWE (k.) 

Exceptions from Fourth Circuit Court. 

Hearing, March 31, 1891. Decision, April 21, 1891. 

JUDD, C.J., McCULLY, BiCKERTON, DoLE, JJ. 

The evidence of the father of the plaintiffe that neither he nor his daugh- 
ters were in possession of the land claimed, from the time of a decision 
of Ciroait Judge McBryde's (1868) to the beginning of this action 
(July, 1889), and the defendants showing that they were in posses- 
sion during this period, the verdict of the jury for the plaintiffs is 
manifestly against the evidence. 

Verdict set aside and new trial ordered. 

Opinion of thb Court, by Judd, C.J. 

This is an action of ejectment to recover land at Kapaia, 
Hanamaulu, Kauai, tried at the last term of the Circuit Court 
of the Fourth Judicial Circuit. The verdict was for the plain- 
tiffs, to which the defendants excepted, as being contrary to law 
and the evidence and the weight of the evidence, and move for 
a new trial. 

The entire testimony for the plaintiffs to support their claim 
of relationship to Naehu, the patentee, was by Nika Paniolo, 
their father. He says that Naehu died in 1847, leaving Kelii- 
kupololei, a daughter, who was the grandmother of his daugh- 
ters, the plaintiffs. This was denied by four witnesses on the 
part of the defendants, who say that Naehu died without issue. 
The jury, however, preferred to believe the testimony of this 



KAILIANU V8. LUMAL 257 

interested witness rather than that of the witnesses who op- 
posed hini. But the evidence by this same witness for the 
plaintiffs, on the defense of adverse possession, is to the effect 
that when Judge McBryde heard the matter of the Estate of 
Naehu in Probate, he left the land, and there is no evidence that 
he ever resumed possession of it. The proceedings before Judge 
McBryde were not introduced, and we are in the dark as to 
their exact .nature. It was proved, however, that they were 
had in 1868. The deduction is clear that plaintiffs, either per- 
sonally or by their father, Nika Paniolo. were not in possession 
of this land from 1868 to the date of bringing this action, July, 
1869, a period of twenty years. There was abundant testimony 
that the defendants were in possession during this period. It 
is not necessary to discuss whether the possession of one of the 
defendants was adverse, he being the administrator of Naehu, 
for the record of the proceedings in Probate was not introduced, 
and we do not know whether the proceedings were to appoint 
an administrator, or for a decree of heirship, a common proceed- 
ing by some Circuit Judges in those times. 

The jury, we are satisfied, disregarded the testimony and 
acted upon some bias or prejudice in arriving at their verdict, 
which is so manifestly wrong that we feel compelled to set ii 
aside and order a new trial, which is done accordingly. 

Concurring Opinion op Dole, J. 

On the question of inheritance there was substantial evidence 
for the plaintiffs in the testimony of Nika Paniolo, the father of 
the plaintiffs, and the jury had the discretion of accepting and 
acting on it as true, against the greater number of witnesses 
who testified for the defense on this point. The Court, there- 
fore, would not be justified in ordering a new trial on the 
ground of there being insufficient evidence to support a verdict 
on the question of inheritance. 

The defendants, on their other defense of adverse possession, 
introduced evidence showing that in 1868 there were proceed- 
ings in probate referring to this land, and that from that time 
they had been in possession of the land. Their evidence is 
17 



258 MARCH, 1891. 

clear and definite that their possession was adverse so far as 
the plaintiffs were concerned, and was notorious and uninter- 
rupted. 

The plaintiffs put Nika Paniolo on the stand in rebuttal of 
this claim by adverse possession, who testified in substance 
that after Naehu's death he cultivated the land and that on 
account of McBryde's decision he gave up the land, and that it 
went to them (presumably the defendants) by Judge McBryde's 
decision ; that he left the island with his daughters in 1869 and 
returned in 1872 and "lived there in grass house near inia tree," 
that the inia tree was not on land in dispute ; that " we lived 
there together. I quit in 1874. After my return I lived with 
defendants." 

This testimony rather supports the defendants' theory of ad- 
verse possession than attacks it. There is no evidence of an 
assertion of his claim to the land or an ouster of the defendants 
or an interruption of their possession in any way after 1868. 
His statement that after his return he lived with the defen- 
dants has, as it stands, no significance or value ; it is not evi- 
dence upon which an ouster or an interruption to the defen- 
dants' possession can be presumed. The plaintiffs also intro- 
duced three other witnesses in rebuttal of the defendants' claim 
by adverse possession. The first one, Kaohele, and the third, 
Puko, said absolutely nothing which tended to rebut this claim; 
the second, Kahinu, stated that in 1872 the defendants were 
not living on the land. A bare statement like this is not suffi- 
cient to overthrow a priifna facie case of title by adverse posses- 
sion. It is true that an abandonment of the premises by the 
defendants would have stopped the running of their adverse 
possession, but a mere absence is not an abandonment, nor 
would a residence elsewhere, while the premises were used by 
them or their tenants, have that effect. 

The rebuttal has entirely failed to produce any evidence 
which justifies the verdict, and I agree with the decision of the 
Court ordering a new trial. 

A, Rosa, for plaintiffs. 

W. 0, Smithy for defendants. 



THE KING vs. ANGEE. 269 



THE KING vs. ANGEE and AH HUNG. 

Exceptions to Order op McCully, J. 

Hearing, April 1, 1891. Decision, April 13, 1891. 

judd, c.j., mccully, bickerton, dole, jj. 

The jadioial oath in use in oar courts is a legal oath. 

It is sufficient in an indictment for perjury to allege that the defendant 
was '^duly sworn/' without setting forth the form in which the oath 
was administered. 

In an indictment for perjury, if the sworn statement alleged to be false is 
so related to the issue or the "material fact to be proved'* as to tend 
circumstantially to its proof, it is sufficient. 

Opinion of the Court, by Dole, J. 

The defendants in these two cases have demurred to indict- 
ments charging them respectively with perjury, committed as 
witnesses in the examination of one Ah Wai upon a charge of 
arson, before Wm. Foster, Esq., Police Justice of Honolulu. 

The grounds of demurrer are substantially identical in both 
cases. 

The first ground is as follows: 

''Defendant denies that, as a matter of law, William Foster, 
Esq., before whom, as District and Police Justice of Honolulu 
(as alleged in said indictment) the false swearing of and by 
this defendant, set forth in said indictment, is therein alleged 
to have been done and committed, had, at the date therein 
named, to wit, the fith day of August, 1890, any legal authority 
to administer to this defendant such oath as is described in such 
indictment; and defendant denies thai the administration of 
such oath to this defendant, by said William Foster, was then 
and there required or authorized by law." 

This appears rather to be an objection to the legality of the 
oath said to have been administered than to the general author- 



260 APRIL, 1891. 

ity of the Police Justice to administer a legal oath. It is de- 
nied that the Police Justice had, at the time referred to, "any 
legal authority to administer to this defendant such oath as is 
described in said indictment." This, we gather from the argu- 
ment of the defendant's counsel, refers to a supposed form of 
oath set forth in the indictment; but the form of oath is not 
therein set forth, the allegation being simply that the witness 
was then and there duly sworn by said William Foster, Dis- 
trict and Police Justice as aforesaid, to tell the whole truth, and 
nothing but the truth relative to the issue, etc. The words 
"duly sworn" cover the distinctive nature of the oath as an oath, 
and with the words which follow, t. c, "to tell the truth, the 
whole truth, and nothing but the truth," make a sufficient alle- 
gation that a legal oath, if such exists, was administered in due 
form. 2 Archbold's Crim. Pr. & PL, 1723, n. i. 

It is further denied "that the administration of such oath 
(as described in the indictment) to this defendant by said Will- 
iam Foster, was then and there required or authorized by law." 

We feel that this point is also met by our foregoing ruling 
that the oath is not described, and that the allegation is in ef- 
fect that it was administered in due form; but, inasmuch as 
the defendants' counsel has raised under this part of the de- 
murrer the whole question as to the existence of a legal oath 
under which witnesses may be sworn in this country, we will 
consider it now instead of leaving it to come up later in the 
proceedings. 

The defendants' argument, that because we have no common 
law offenses we are therefore precluded from the use in our 
practice of any common law definitions which go to make up 
the description of a criminal offense, is untenable. Many words 
are necessarily used in defining crimes which are of a technical 
character, with meanings derived sometimes from usage, some- 
times from the common* law, and sometimes from judicial de- 
cisions. The contention that we must go to our statutes for the 
definitions of all words which themselves are used in defining 
crimes is simply impracticable. Such a requirement would en- 
cumber our law books with vast stores of, for the tnost part, an- 



THE KING V8. ANGEE. 261 

necessary definitions, and would defeat many of our existing 
laws, as it would certainly destroy the statute of perjury. The 
following are a few of the many technical words to be found in 
our criminal statutes, and which are not defined by legislative 
enactments in this country: Convert, in the statute of Embez- 
zlement; Homicide, in Duelling; Cohabit, in Polygamy; Duress, 
in Extortion; Animal, in Cruelty to Animals; Witness, in Per- 
jury; Compound, Deposition and Testimony, in Obstructing and 
Perverting Justice; Confederacy, in Conspiracy. 

The meaning of the word "oath'' in the statute of Perjury is 
as definitely established by usage in this country, not to speak 
of that of the rest of the civilized world from ancient times, as 
is the meaning of the word "witness" in the same statute and 
in the other parts of the Criminal Code, or the meanings of any 
of the other words above-mentioned. Usage may be resorted 
to for the purpose of interpreting words of a statute where their 
meaning is uncertain. Civil Code, § 9. 

"Where the statute, speaking on some points, is silent as to 
others, usage may well supply the defect, especially if it is not 
inbonsistent with the statutory directions, where any are given ; 
or where the statute uses a language of doubtful import, the 
acting under it for a long course of years may well give an in- 
terpretation to that obscure meaning, and reduce that uncer- 
tainty to a fixed rule, optimus leges interpres consuetudo, which 
is sometimes termed contemporanea exposition Lord Brough- 
am, in Magistrates of Dunbar vs. Duchess of Rozburghe, 3 CI. 
& Fin., 283. 

The oath in common use in the courts of this Kingdom is the 
one meant by all of our statutes which refer to judicial oaths, 
and is thereby, both by the courts and the statutes, recog- 
nized as a legal oath. 

To the defendants' contention that the allegation of the in- 
dictment that the "oath was then and there required by law, 
and the requiring of it was then and there authorized by law," 
being stated conjunctively instead of disjunctively, as in the 
statute, is bad unless the statutes show an express mandate to 
the justice in question to administer the oath, we answer that 



262 APRIL, 1891. 

the point is immaterial; it is sufficient if, consistently with the 
statute, the oath is found to be required by law, or the requir- 
ing of it authorized by law. 

We therefore overrule the lirst ground of the demurrer. 

The second ground is: "It does not appear from said indict- 
ment that the facts or allegations to which, as said indictment 
charges, this defendant falsely swore, as therein set forth, were 
material to the issue then pending, as described in said indict- 
ment." 

The law in this regard is that the statements alleged to have 
been falsely sworn, and thereby constituting the crime of perjury, 
must be alleged to be material to the issue in which they were 
given, or they must appear to be material from the nature of 
their information. "I do not mean that the particular fact 
sworn to must be immediately material to the issue, but that 
it must have such a direct and immediate connection with a 
material fact as to give weight to the testimony on that point." 
State vs, Hattaway^ 2 N. & McC, 118; 10 Am. Dec, 580; 4 Crim. 
Def., 375. The indictment alleges that it was "a material fact 
to be proved that said Ah Wai, on, to wit, the 28th day of July, 
1890, and in the night time of said day, did unlawfully, will- 
fully and maliciously set fire to and burn the dwelling-house of 
one Ahung, situate in Honolulu aforesaid, which said dwelling- 
house was then and there occupied by and had as its inmates 
said Ahung and others." If this charge had been proved 
against Ah Wai, it would have convicted him of arson in the 
first degree. 

The indictment against Angee charges that in the exami- 
nation he stated under oath that "he, said Angee, lives in 
house adjoining said Ahung. That he, said Angee, was at home 
on the night of July 28th, 1890; that he, said Angee, saw a fire 
and ran out; that he, said Angee, saw said Ah Wai standing at 
the makai Ewa gate; that the house on fire was the one nearest 
to that gate and was Ahung's house; that the blaze was under- 
neath the house; that when Ah Wai saw him, said Angee, said 
Ah W^ai ran; that the said Angee cried out, *Ah Wai, you set 
the house on fire; ' that the said Ah Wai then threw a kerosene 



THE KING V8. ANGEE. 263 

bottle at him, said Angee, which said bottle hit against the wall 
and broke; that said Ah Wai tried to open the said gate and 
run out, but he, said Angee, ran and seized said Ah Wai by 
said Ah Wai's side; that Ah Wai then struck him, said Angee, 
with a knife and knocked him, said Angee, down, and then he, 
said Ah Wai, escaped. That said house was then and there oc- 
cupied by said Ahung and others;" and makes the following as- 
signments of perjury: 

" Whereas in truth and in fact the said Ah Wai was not on 
the night of said July 28th, 1890, standing at said makai Ewa 
gate; that said Ah Wai did not throw a kerosene bottle at said 
Angee; that said Angee did not seize said Ah Wai by his, said 
Ah Wai^s, side; that said Ah Wai did not strke^said Angee with 
a knife or otherwise, nor did said Ah Wai knock said Angee down, 
nor did said Ah Wai run away from said premises. And 
whereas, in truth and in fact, said Ah Wai was not on said 
premises at all during the night of said July 28th, or morning 
of July 29th, aforesaid, and that said Ah Wai did not set fire to 
said dwelling house of Ahung as aforesaid, all of which the said 
Angee then and there well knew." 

The sworn statement charged to be false in Ahung's indict- 
ment, and upon which perjury is assigned, agrees substantially 
with this. 

It is clear to us that the allegations of the evidence of defend- 
ants upon which perjury is assigned, in each indictment, con- 
tain statements which are pertinent to the issue recited, i.e.y that 
it was **a material fact to be proved that said Ah Wai on, to 
wit, the 28th day of July, 1890, and in the night time of said 
day, did unlawfully, willfully and maliciously set fire to and 
burn the dwelling house, etc." The alleged evidence by both 
of the defendants that they saw Ah Wai on the night in ques- 
tion on or near the premises where the fire was said to have 
taken place, and at the time it was said to be burning, that an 
effort was made by Angee to arrest him, and that he resisted 
with force and ran away, and Angee's additional statement that 
he. Ah Wai, threw a kerosene bottle at him, have certainly such 
a direct and immediate connection with the " material fact to be 



264 APRIL, 1891. 

proved" as to give weight to the testimony on that poiat; and 
assignments of perjury being made as to these statements, they 
are sufficient. This is in accordance with the authoritv of 
Donahue vs. State, 14 Texas, 638, and 4 Grim. Def., 383, cited by 
defendant's counsel in favor of his position, although it would 
appear from certain dicta of the decision in that case standing 
alone, that the indictment must specifically allege in stating the 
evidence upon which perjury is assigned, that it is material. It 
is sufficient if such evidence is pertinent to the issue or " fact 
to be proved" elsewhere alleged to be material. 

The second ground of demurrer is therefore overruled. 

The third and fourth grounds of the demurrer are also over- 
ruled. They are as follows: It does not appear with reasonable 
certainty from said indictment what premises are referred to, 
wherein the said indictment charges that " in truth and in fact 
said Ah Wai was not on said premises on said night," nor does 
it appear what gate is referred to in and by the phrase, ** the 
makai Ewa gate" in said indictment contained, and " it is 
otherwise uncertain and doubtful from a reading of said indict- 
ment what place or locality is therein referred to, as the place 
at which, as alleged therein, defendant falsely swore to having 
seen Ah Wai and to have seen one Angee struggling with said 
Ah Wai on the night of July 28, 1890." 

We think that the indictments furnish sufficient information 
on these points, inasmuch as the}'' clearly allege that Ah Wai 
was charged with setting fire to Ahung's dwelling house situate 
in Honolulu and occupied by Ahung and others, and that the 
defendants testified to having seen Ahung's house on fire on the 
night in question, and to seeing Ah Wai near t<") the burning 
house under the suspicious circumstances mentioned. 

The decision excepted to included also the case of The King vs. 
Ah Fooky which case we dispose of in a separate opinion, post, 
page 265. As to the two cases before us, that is, The King vs, An- 
gee, and The King vs, Ahung, the decision of the Court below is 
sustained. 

Deputy Attorney- General Creighton, for the Crown. 

C. W, Ashford, for defendant. 



THE KING V8. AH FOOK. 265 



THE KING V8. AH FOOK. 

Exceptions to Order of McCully, J. 

Hearing, April 1, 1891. Decision, April 14, 1891. 

judd, c.j., mccully, bickerton, dole, jj. 

If it does not appear in an indictment for perjury that the statement, upon 
which the perjury is assi^ed, was pertinent to the issue in the pro- 
ceedings in which such perjury is alleged to have been committed, the 
indictment is defective. 

Opinion op the Court, by Dole, J. 

The defendant demurred to an indictment charging him with 
perjury in the first degree, committed as a witness in the ex- 
amination of one Ah Wai, upon a charge of arson, before Wil- 
liam Foster, Esq., Police Justice of Honolulu. 

The first ground of the demurrer, relating to the oath alleged 
to have been administered to defendant, is identical with the 
first ground of demurrer in the cases of The King vs. Angee and 
The King vs, Ahung, ante, page 259; the defendants in which 
cases being also indicted for perjury alleged to have been com- 
mitted in the examination of said Ah Wai for arson, which 
point has been overruled by us in our opinion filed April 14th, 
1891. Upon the same reasoning we overrule the first ground 
of demurrer in this case. 

The second ground of demurrer is as 'follows: '* It does not 
appear from said indictment that the facts or allegations to 
which, as said indictment charges, this defendant falsely swore, 
as therein set forth, were material to the issue then pending,, as 
described in said indictment." 

The issue in the proceedings in which the perjury is charged 
to have been committed, as set forth in the indictment, is as 
follows : "Said Ah Wai on, to wit, the 28th day of July, 1890, 



266 APRIL, 1891. 

and in the night time of said day, did unlawfully, willfully and 
maliciously set fire to and burn the dwelling house of one 
Ahung, situate in Honolulu aforesaid, which said dwelling 
house was then and there occupied by and had as its inmates 
said Ahung and others." This is alleged to be " a material fact 
to be proved," in such proceedings. The allegation of the false 
statement made under oath by the defendant, with the assign- 
mentfi of perjury thereon, are as follows: "That he, the said 
Ah Fook, was in bed on the night of said July 28th, 1890 ; that 
he, said Ah Fook, heard of fire ; that he, said Ah Fook, ran 
down in a side lane leading to one Angee's yard ; that said Ah 
Wai was the first person he, said Ah Fook, met as he got into 
the lane ; that said Ah Wai ran past him, said Ah Fook ; that 
he, said Ah Fook, knows said Ah Wai quite well ; that he, said 
Ah Wai, was a foot from him, said Ah Fook ; that he, said Ah 
Fook, kept on in the said lane to the fire ; that said fire was in 
the corner of said Angee's building near the gate; that the 
blaze was higher than a man's head ; that the battens of the 
floor were scorched ; that it was between two and three o'clock 
in the night. Whereas in truth and in fact the said Ah Fook 
did not meet said Ah Wai in said lane ; that said Ah Wai did 
not run past him, said Ah Fook, and was not one foot from 
him, said Ah Fook; and whereas in truth and in fact said Ah 
Wai was not there present on that said night, all of which the 
said Ah Fook then and there well knew." 

There does not seem to be anything in this allegation of the 
defendant's false statement under oath which is pertinent to 
the issue of the procceedings in which it was given, or tends 
circumstantially to the proof of the " material fact to be proved" 
in those proceedings! If it is true that defendant made this 
statement under oath at that examination, there is nothing in 
it that affects the case in point ; for the circumstance of the 
defendant's meeting with Ah Wai in a lane leading to Angee's 
yard has no significance in the premises without some further 
information as to the distance of the place of this meeting from 
the fire ; neither has the other circumstance, that Ah Wai was 
running at the time, any value for the same reason. The place 



SHAW V8. AH LING. 267 

where defendant met Ah Wai may have been a mile or two 
miles, or further, away from the fire, so far as we are informed 
by this alleged false evidence, and there are no farther state- 
ments which connect this evidence about Ah Wai with the issue 
in the proceedings in question. We think that the reference to 
Ah Wai is too uncertain and too remotely related to the mate- 
rial fact to be proved to be regarded as material, and therefore 
sustain the demurrer on this ground. 

The third ground of the demurrer in a different shape raises 
substantially the same points that are disposed of under the 
second ground of demurrer. 

Deputy Attorney' General Creighton, for the Crown. 

C. W, Aahford, for defendant. 



J. SHAW V8, AH LING, PELANI (w.) and KAOPULAU- 

OHA (k.) 

Appeal from Commissioner of Ways. 

Hearing, April 1, 1891. Decision, April 15, 1891. 

JuDD, C.J., McCully, Bickerton, Dole, JJ. 

The petitioner not showing a right of way by prescription, a right of way 
by necessity awarded him. 

Opinion op the Court, by Judd, C.J. 

The Commissioner awarded to petitioner a right of way three 
feet wide over the land of Pelani (w.) at Kalaepohaku, Kapa- 
lama, Honolulu, Oahu. 

It was located by the Commissioner to begin " at the north 
corner of Pelani's land (sold by R. Keelikolani to Kuhiana by 
deed recorded in Liber 39, p. 412) at stone wall and runs along 
the northwest boundary of Kuhiana, to L. C. Award 2,266, 
thence across a portion of this award to and across an auwai." 



268 APRIL, 1891. 

The defendants appealed. It appears from the testimony that 
this lot called Kuhiana^s was unfenced for many years previous 
to the sale to Kuhiana, and that the persons occupying the land 
makai of it, now owned by Mr. Shaw, had access to the Govern- 
ment road through every part of the Kuhiana lot as it suited 
their convenience. On the sale to Kuhiana in 1875 it was 
fenced and built upon and afterwards divided to Kuhiana's 
heirs, one of whom is Pelani (w.). defendant. Mr. Shaw's pre- 
decessors in the title, and his tenants since his purchase of the 
land below in 1886, were accustomed to pass through a gate in 
Pelani's fence on the Government roaJ, over her land to i gate 
in a fence which separated the house lot from her cultivated 
land below, leased to Ah Ling,' defendant, and along a kuauna or 
bank to Mr. Shaw's land. This last mentioned gate was closed 
by Ah Ling, defendant, and caused this application. 

It is clear that the right of way claimed by the petitioner, Mr. 
Shaw, has not been acquired by prescription, for its uses only 
began in 1875, when the fences were put up. We think, how- 
ever, that Mr. Shaw is entitled to a right of way to his land 
from the Government road mauka, which leads to the stone 
quarry and out to King street on the easterly side of Kameha- 
meha school premises. He is entitled to it by necessity. But 
the Commissioner has located it very inconveniently for Pelaui 
(w). It would cut through the back part of a stable that has 
been apparently standing for many years. We noticed on our 
visit to the locus in quo that Mr. Shaw has land adjoining the 
Pelani lot extending to the Government road. Why should not 
the right of way be awarded to petitioner over his own land as 
far as it extends? The statute requires that the decision shall 
be " equitable," and we think it would be inequitable to award 
one a right of way over another's land, causing the removal of 
buildings, when it can be avoided. 

It was stated in argument and admitted by counsel on both 
sides that this lot is under lease by Mr. Shaw to Ah Ling, one 
of the defendants. It is cultivated in bananas. The judgment 
of the Commissioner is reversed, and we award a right of way 
three feet wide, beginning at the stone wall on the Government 



MAHOE vs. KAOHIMAUNU. 269 

road in question, and running on the Shaw land (marked No 2 
on I he map filed) along its easterly side, where it adjoins the Pe- 
lani lot. The right of way is to run makai at right angles, as 
near as may be, to the Government road, and to continue on 
through the Shaw lot marked No. 2, to and through the L 
shaped part of the Pelani lot marked ** E" on the map, over the 
auwai to the Shaw land marked No. 3 on the map. The right 
of way is not to be fenced out. The expense of opening the 
way is to be borne by the petitioner. 

Each party to pay his own costs. 

W. 0, Smith, for petitioner. 

S, K. Kane, for defendants. 



MAHOE, Administrator, vs. KAOHIMAUNU. 

Exceptions from Fourth Circuit Court. 

Hearing, April 1, 1891. Decision, April 16, 1891. 

JUDD, C.J., McCuLLY, BiCKERTON, DoLE, J J. 

In an action for the recovery of specific chattels, the jury rendered a ver-i 
diet awarding an article which had not been claimed : 

Held, that the plaintiff could not refuse to aUow the error to be corrected 
and demand a new trial, and that it was within the province of the 
Court to order the verdict to be amended. 

Exceptions overruled. 

Opinion op the Court, by McCully, J. 

The plaintiff brought his action before the Police Court of 
Lihue, in statute form, for the recovery of certain specified 
articles of property held by the defendant, which he claimed 
were of the estate of his intestate. The case came up by appeal 
before a jury in the Circuit Court of the Fourth Judicial Cir- 
cuit, which rendered a verdict in the plaintiff's favor for certain 
of the items claimed, and also for '^ the balance of the money 



270 APRIL, 1891. 

of the deceased, held by the defendant, thirty-nine dollars," an 
item which had not been declared upon by the plaintiff. It 
was not in the nature of damages. It appears that some wit- 
ness had irrelevantly testified that at the death of the intestate 
forty-nine dollars had been found in his chest, of which ten 
dollars had been taken to pay funeral expenses, upon which 
the jury thought fit to award this balance to the plaintiff. It 
was mainly on the ground of this error in the verdict that the 
plaintiff demanded a new trial, and excepts to the ruling of the 
Court denying it. He contends that it is solely within the 
right of the plaintiff to file a remittitur, and that the Court can- 
not order one. 

But this is not the case of a jury giving excessive damages, 
unsupported by the evidence, where a verdict might be condi- 
tionally ordered to be set aside unless the plaintiff shall file a 
remittitur of a certain amount, nor is it even the case of a ver- 
dict for an amount in excess of the declaration, but it is an 
award for something the plaintiff did not ask for. It is a sim- 
ple blunder of the jury. 

Now with what reason can the plaintiff ask for a new trial on 
this ground, the verdict being legal in other respects ? It can- 
not be said that it is his right to have a new trial in order that 
he may take his chance to recover more of the items which 
were sued for. The reasonable method of dealing with such a 
verdict is that the Court should have ordered it to be corrected 
to conform with the declaration, in order " to make the record 
speak a language explicitly which is conformable to its true 
construction if no remittitur were entered." " It is the duty of 
the clerk at nisi prius, if the jury by mistake find a verdict for 
greater damages, to enter it by the amount laid in the declara- 
tion merely." 1 Arch. Prac, 197. It was error to enter the 
verdict as it was rendered ; and we are of opinion that the Cir- 
cuit Court may at its ensuing term correct its records by an 
amendment in accordance with the pleadings, by striking out 
the finding for thirty-nine dollars. And it is so ordered. 

A, Rosa, for plaintiff. 

W, 0. Smith, for defendant. 



KAHEANA vs. NALIMU. 271 



KAHEANA vs. NALIMU. 

Exceptions. 

Hearing, July 16, 1891. Decision, July 21, 1891. 

judd, c.j., bickerton and dole, jj. mccully, j., absent. 

(1) A motion for a new trial, on the ground that defendant has diBCovered 
new and material evidence, overruled, it appearing that though aware 
of the plaintiff's claim before the trial, defendant used no diligence to 
procure evidence to rebut the same. 

(2) An examination of the evidence shows that the verdict is sustained by 

considerable and definite testimony. 

Opinion op the Court, by Judd, C.J. 

At the special term of this Court, March, 1891, we held that 
the defendant had complied with the statute and rules respect- 
ing the perfecting of motions for new trials, and ordered the 
parties to be heard on the merits of the motion. (Ante, page 227.) 

Mr. Justice Dole heard the motion in vacation, and on the 3d 
July filed his decision overruling the same, to which exceptions 
were taken by defendant, and the matter was argued before the 
Court in Banco. 

Having examined the evidence in the case and the affidavits 
on file, we are of the opinion that the decision and judgment of 
Mr. Justice Dole denying a new trial should be affirmed, which 
is done accordingly. 

Decision of Dole, J., Appealed From. 

This is a case of ejectment, and the verdict was for the plain- 
tiff. The defendant moved for a new trial upon the following 
grounds : 

1. That the defendant has discovered new and material 
evidence ; and 



272 JULY, 1891. 

2. That the verdict of the jury was contrary to law and the 
weight of the evidence. 

On the second ground there is no question that the evidence 
made an issue for the jury, and that in finding a verdict for the 
plaintiff they were supported by both considerable and definite 
testimony. 

As to the newly discovered evidence, the principal affidavit 
is by Loe (w.) who names different parents of the plaintiff than 
those mentioned at the trial. This, if proved at the trial of the 
case, would defeat the plaintiff. But the defendant, or her coun- 
sel, knew long previous to the trial that this plaintiff was a 
claimant of a part of the estate which she received from her 
husband, as his uncle. This appears in the probate proceedings 
of her husband's estate in 1889, in which the petition states 
that Kaheana, as uncle to the deceased, is an heir, and lives at 
Keei, South Kona, Hawaii, and the clerk's notes show that W. 
C. Achi made an appearance for " Kaheana, uncle of deceased." 
Mr. Rosa appeared at the same proceedings as counsel for the 
widow, this defendant. The plaintiff's counsel further shows 
by affidavit, that before the trial of this case he furnished Mr. 
Rosa, defendant's counsel, with the pedigree or family tree show- 
ing Kaheana's relationship to the deceased. Defendant's coun- 
sel cannot therefore claim to be taken by surprise by the evi- 
dence in the case on this point. Under the circumstances it 
does not appear that the defendant has exercised a reasonable 
diligence in preparing her case. It was obviously her duty to 
procure available testimony as to the plaintiff's parents and to 
search in Kona, his home, for such information. There is no 
evidence that any attempt has been made on her part to procure 
evidence on this point from that locality. The Court in CUrn- 
ent V8. Cartioright, 7 Hawn., 678, say, on a similar motion, "a 
party must use due diligence to procure all the important evi- 
dence that exists ; he must search for it wherever there is a prob- 
ability of finding it." 

The defendant asks for a new trial in order to put in testi- 
mony that she ought to have put in at the first trial, and which 



THE QUEEN vs. FERNANDEZ. 273 

she might have had then, so far as anything appears to the con- 
trary. 

The motion is overruled upon both grounds. 

W. C\ Achi and E. Johnson, for plaintiflF. 

A, Rosa, for defendant. 



THE QUEEN vs, V. FERNANDEZ. 

Exceptions. 
Hearing, July 16, 1891. Decision, July 21, 1891. 

judd, c.j., bickerton and dole, jj. mccully, j., absent. 

The defendant pleaded groilty, in the Police Oourt of Honololn, to 
charge of larceny in the third deg^ree, and was sentenced; he appealed 
to the Supreme Court and moved that he be allowed to withdraw his 
plea of guilty and plead not guilty. The Presiding Justice denied the 
motion, and defendant excepted. Held, no error. 

Opinion op the Court, by Judd, C.J. 

The law divides criminal cases into two classes; one class is 
of those within the summary jurisdiction of the Police and 
District Court, and the other those which are only triable by a 
jury, upon indictment. In the first class mentioned, the Police 
and District Justices have complete and full jurisdiction to hear 
and determine the case. lu such cases the magistrate has full 
authority over the defendant, and if he pleads guilty inadvisedly 
and wishes to withdraw the same, the magistrate has authority 
to permit him to do so before final judgment. 

If, however, the sentence of the lower Court has been pro- 
nounced on the defendant on his plea of guilty, and an appeal is 
taken, the issue of guilty or not guilty is not before the Appel- 
late Court. In fact, the issue in a criminal case is made by the 
defendant's plea of not guilty. And when the plea is guilty 
there is no issue before the Court, unless the question of mitiga- 
tion of sentence be called an issue. 
18 



y 



274 JULY, 1891. 

The case of TUe King vs. Maikai, 6 Hawn., 145, is an author- 
ity for the position that a plea of guilty, entered before a Court 
having jurisdiction of the oflfense, cannot be retracted in the Ap- 
pellate Court, and this authority has been followed without 
question. 

There are many cases reported where the defendant has asked 
of the Court, that took his plea of guilty, for permission to with- 
draw the plea and plead not guilty, and Courts are vested with 
the discretion to allow or refuse this, but we have not been able 
to find a case where this has been done in an Appellate Court, 
See U, S, V8, Bayand, 23 Fed. Rep., 721. 

We hold that the leave to withdraw the plea of guilty was 
properly declined. Exceptions overruled. 

Attorney- Oeneral Whiting, for prosecution. 

A, Rosa, for defendant. 



THE QUEEN vs. J. E. BUSH. 

Exceptions to Rulings of Dole, J. 
Hearing, July 16, 1891. Decision, July 24, 1891. 

JuDD, C.J., Bickerton and Dole, J J. McCully, J., Absent. 

The Court ordered an amendment t(5 be made to an indictment, it hav- 
ing been found to be insufficient. 

Held, that the Court, under Section 33 of the Act to regulate the practioe 
and procedure in criminal oases, has authority to order the amend- 
ment, and is not limited by the statute as to the character of the 
amendment. 

Opinion of the Court, by Bickerton, J. 

Defendant demurred to the suflBiciency of the indictment and 
the demurrer was sustained, and the Court, under Section 33 of 
the Criminal Practice Act, ordered an amendment to be in- 
serted, which was done accordingly by the Clerk. Defendant's 



THE QUEEN vs. BUSH. 275 

counsel objected to the anendment, and demurred to the juris- 
diction of the Court to make or order the said amendment. The 
Court overruled the same, and defendant's counsel notes excep- 
tion, and the matter is now before us on a bill of exceptions 
duly allowed by Mr. Justice Dole, the Presiding Justice. 

Section 33 of the Act to regulate the practice and procedure 
in criminal cases, page 347, Compiled Laws, is as follows: 
"Every objection to any indictment for any defect apparent on 
the face thereof shall be taken by demurrer or motion to quash 
such indictment before the accused has pleaded and not after- 
wards; and every court before which any such objection shall 
be taken for any such defect may, if it be thought necessary, 
cause the indictment to be forthwith amended in such particu- 
lar by some officer of the court, or other person, and thereupon 
the trial shall proceed as if no such defect had appeared; and 
no motion in arrest of judgment shall be allowed for any defect 
in any indictment which might have been taken advantage of 
by demurrer or motion to quash as aforesaid." 

It is clear to us that the intention and object of this law was 
to obviate the necessity of a second indictment, in case one 
should be quashed on demurrer. The result in this case, should . 
the indictment be quashed, could only be the presenting of a 
new indictment containing the amendment ordered by the 
Court. The words, "if it be thought necessary," which we find 
in the section, mean more than at first sight would indicate. 
They can only mean that where an objection is taken to an in- 
dictment for any defect in it, it is within the authority of the 
Court to order an amendment so as to make the indictment 
good and sufficient, and then only when the Court may think 
necessary; the authority of the Court is not limited by the stat- 
ute as to the character of the amendment. The authority of 
the Court to order such an amendment was settled in the case 
of Rex V8, Ho Fon, 7 Hawn., 757. In that case the Court found 
the indictment to be insufficient and one that the defendant 
waa not called upon to answer; and say, "But we will not order 
judgment to be entered in his favor, as under Section 33 of the 
Act to regulate the practice and procedure in criminal cases we 



^ 



276 JULY, 1891. 

have authority to cause the indictment to be amended," which 
was done. 

The exceptions are overruled. 

Attorney- General Whiting, for the prosecution. 

Ashford & Ashfordy for defendant. 



HILO SUGAR COMPANY vs. H. C. AUSTIN, Tax Assessor. 

Before Full Court, by Agreement. 
Hearing, July 16, 1891. Decision, July 27, 1891. 

JuDD, C.J., Bickerton and Dole, JJ. McCully, J., Absent. 

The directions in the printed blanks, famished for returns of tax-payers, 
are not framed so as to be authoritative rules of the Minister of Fin- 
ance, in pursuance of Section 69, Chapter 43, Laws of 1882, and they 
have not been published so as to be obligatory upon all persons. 

The tax return of the plaintiff, giving acreage of its lands, their character 
and value, and the names of the lands, is a sufficient compliance with 
Section 33 of the Taxation Act, which requires the return to give the 
'* description, situation and value^' of the real estate. 

Opinion of the Court, by Judd, C.J. 

This is a bill in equity, to enjoin the collection of the taxes 
for the year 1890, assessed upon the property of the plaintiff 
corporation. It alleges that the plaintiff, by its manager, made 
a sworn return of its property to the assessor within the statu- 
tory time; that it was objected to as not containing certain par- 
ticulars alleged by the assessor to be required by a regulation of 
the Minister of Finance, and that on the assessor increasing the 
returned valuation from $300,929.29 to $416,096.29, the plain- 
tiff tendered costs and asked for an appeal, which was denied 
on the ground that the return did not comply with the law. 
The plaintiff tenders and pays into court $3,009.29, the tax 
upon the valuation in the return, and prays that the tax collec- 
tor may be enjoined from collecting any further sum. 






HILO SUGAR CO. vs. AUSTIN. 277 

The fir8t question involved in this case is, is there any rule 
or regulation by the Minister of Finance in force and validity 
requiring the particulars in the return asked for by the assessor? 

The 69th Section of the Taxation Act of 1882 (Compiled Laws, 
p. 131) is as follows: "The Minister of Finance shall have 
power, and it is hereby made his duty, to prescribe all needful 
rules and regulations for the assessment and collection of taxes, 
in cases where no such rules and regulations are made by law; 
provided, however, that the same shall not be in contravention 
of any existing statute or inconsistent with the Constitution." 

There is on the 4th page of the blank " return" or " state- 
ment" furnished to the tax-payer to be filled in, signed and 
sworn to by him, a series of directions, beginning " all property 
must be assessed at its full cash value as of July 1st, 18 — ," 
and ending with a number of questions: " Are you an agent of 
an insurance company? If so, state the name of the company 
and the amount of actual premiums received during the year 
previous to 1st July, 18 — , Jf — ; number of carriages and 
wagons used for hire and pleasure; number of wagons, carts 
and drays used for work only; number of dogs; are you a mem- 
ber of any fire or military company? and what one? All sched- 
ules attached to this return are a part hereof and must be filled 
out. Approved by Godfrey Brown, Minister of Finance." 

Then follows a part of Section 69, Chapter 43, Laws of 1882, 
which has been quoted in full in this opinion. 

Some of the directions above mentioned are definitions and 
particulars taken from the statutes, but often changed in lan- 
guage, or with many particulars not in the statute. One of the 
so-called rules reads: " In making a return please state the 
street and number of lots in town, and lots in the country 
should be described by noting the name of the Hi or Ahupuaa 
in which they are situated; also state if any property has been 
sold during the year, to whom and for what price; also the 
number of the royal patent and the Land Commissioners' 
Award." 

We notice that this page of the return is not headed " Rules 
and Regulations for the assessment and collection of taxes made 



y-' 



/v 



y 



278 JULY, 1891. 

by the Minister of Finance in pursuance of the law," etc.. or by 
anything to indicate that they are authoritative and have the 
force of law. The use of the word " please" in the direction to 
state the street and number of the town lots would indicate that 
compliance with it is optional with the tax-payer. 

It is not enough to say that these so-called rules have been 
distributed to each tax-payer, and that the plaintiff has had 
notice of them brought home to him. The statute prescribes 
that " No written law shall be obligatory without being first 
printed and made public." Section 1, Civil Code, page 1, Com- 
piled Laws. A rule of a department of the Government, made 
in pursuance of a statute, must be printed and published as a 
general rule obligatory on all persons, and cannot be put into 
operation by piecemeal by giving notice of it to one individual 
after another. 

No provision i.s made in the 69th Section of the Taxation Act 
of 1882 for the publication of these rules, although such a pro- 
vision is common. Vide the publication required of regula- 
tions made by the Board of Health, p. 72, Compiled Laws. But 
we regard the general provision in the first Section of the Civil 
Code as a sufficient declaration of the principle that all laws, 
and, a fortiori, all regulations that have the force of law, shall 
be published. They should be framed in a manner that they 
speak for themselves, and purport to be regulations made in 
pursuance of the statute and have the force of law. 

We are unable to hold in favor of the position taken by the 
Government in this case, that the regulations printed on the 
blank returns furnished to tax-i)ayers are either framed so as to 
be authoritative, or that they have been published so as tQ be 
obligatory. 

But it is urged by respondent that the return in question 
does not comply with the statute (Section 33, Compiled Laws, 
page 123) that requires a statement of the " (iescription, situa- 
tion and value" of the real and personal estate, belonging, etc. 
The return states the number of acres of each kind of land, to 
wit, 2161 acres of cane land, and their value at $20.00 per acre; 
2167 acres of bush and waste land at $1.00 per acre. Total 



I 



HILO SUGAR CO. vs. AUSTIN. 279 

4328 acres. And on another Schedule, C, the names of ten 
lands, under the heading " Lands and parts held in fee simple 
by the Hilo Sugar Company," with the gross acreage repeated as 
above. 

The cane lands in Schedule A are further classified: 1668 
acres Crop cane, 520 Un-ground, 560 Young plant, 396 Young 
stools. Another Schedule, B, gives the names of the lands leased 
to- the Hilo Sugar Company, the names of the lessors, and the 
statement that the company covenants to pay taxes on these 
lands and that they are " returned among the cane lands in the 
body of this return." 

The schedules have blanks, which were not filled by the 
plaintiff, for the numbers of the' royal patents and of awards of 
the Land Commission, estimated yield in tons of sugar per 
acre, and in the schedule for leased lands are columns also for 
rent per acre, term and time of expiration of lease. The respond- 
ent has treated the statement in question as no return with the 
particulars required by law, and has undertaken to doom the 
plaintiff because the columns in the schedules requiring the 
numbers of the royal patents and awards, etc., are not filled out 
We regard this as unwarranted. 

The statute requirements of "description, situation, and 
value" were complied with by the plaintiff in giving the parti- 
culars it did give. If the amount of the property or the valua- 
tion were deemed insufficient by the assessor, he was authorized 
to add to the amount and increase the valuation, and if this 
was not conceded by the plaintiff corporation it had the right 
of appeal; and before the appeal board, on the proofs taken, it 
would be made to appear which was right. 

Holding, as we do, that the particulars required by the printed 
blank returns were not authorized by a valid regulation of the 
Minister of Finance, and that the plaintiff company has com- 
plied with the particulars required by the statute in the state*- 
ment made, we do not feel called upon to say if a rule requir- 
ing taxpayers to give details of their titles to real estate, and 
estimates of the prospective yield of their growing crops, would 
be in contravention of the statute. 



280 JULY, 1891. 

The plaintiff corporation has been denied its appeal from -the 
increased assessment. The Tax Appeal Board has been dis- 
solved by efflux of time, and the plaintiff has no remedy except 
that prayed for in the bill. Let this be granted it. 

F, M. Hatch, for plaintiff. 

A. P, Peterson y for respondent. 



THE QUEEN t?«. HAUMEA. 

Exceptions from Fourth Circuit Court. 
Hearing, July 16, 1891. Decision, July 27, 1891. 

JUDD, C J., BiCKERTON AND DoLE, JJ. McCuLLY, J., ABSENT. 

On appeal to a jury from a conviction of horBe stealing, and no specific 
charge asked for, the presumption is that the charge was the same as 
in the lower court. 

Irregularities and harmless errors, where defendant's rights are not pre- 
judiced, are not grounds for a new trial. 

Opinion of the Court, by Bickerton, J. 

The defendant was tried at the last February term of the 
Fourtli Judicial Circuit, being charged with larceny of a horse ; 
the jury returned a verdict of guilty ; a motion for new trial 
was filed, and now comes here to be heard. There is no bill of 
exceptions on file, so the matter rests simply on the grounds 
set out in the motion. First, " because the Court admitted tes- 
timony on the part of the prosecution to show the value of the 
animal alleged to have been stolen, there being no allegation of 
value, which was a necessary element in the charge, which was 
under a special statute, and not under the general law of lar- 
ceny." 

Second, *^ that the trial of the said case was illegal, because 
that one of the witnesses for the prosecution, Kalaluhi (k.), 



THE QUEEN vs, HAUMEA. 281 

was sworn and testified while one of the jurymen was absent 
from the jury box." 

Third, "that the defendant since the said trial has discov- 
ered new, important and material evidence." 

Fourth, "that there was misconduct on the part of the jury.' 

Defendant was charged under the Act of 1876, Section 17, 
which provides a penalty for the larceny of cattle, horses, etc., 
not exceeding the value of one hundred dollars. This Act 
amends the Act of 1870, amending Section 17, Chapter 16 of 
the Penal Code. We hold that it was not necessary to allege 
the value of the horse stolen; the fact that defendant was 
charged under this section was in itself an allegation that the 
value of the horse was not over one hundred dollars. 

Where a specific charge was made in the lower court and 
defendant brings the case up by his appeal, the presumption is 
it is the same charge ; the Court was right in allowing evidence 
as to the value (which was shown to be fifty dollars) — this 
brought the case within the law, under which the charge was 
made. We therefore overrule the first ground. 

The second ground. The afiidavit does not support the 
grounds taken. Counsel claims that the witness was sworn 
and testified during the absence of one of the jurors; the coun- 
sel's own affidavit says "the witness Kalaluhi (k) on the part 
of the prosecution was sworn, and the Court, by Chief Justice 
Judd, ordered the witness not to testify, as one of the jurymen 
was absent from the jury box." Even if this was so, could it 
be contended that the defendant was thereby prejudiced in any 
wav ? 

It is a general rule that a new trial will not be granted for 
an entirely harmless error. Motions for a new trial are ad- 
dressed to the sound judicial discretion of the Court, and ought 
never to be granted except to subserve the purposes of substan- 
tial justice. Hilliard on New Trials, page 32. We also over- 
rule this ground. 

Third ground is supported by the affidavit of Mr. Rosa as to 
what a witness named Joe told him after the trial. There is a 
counter affidavit of the man Joe in which he denies the state- 



282 JULY, 1891. 

ment of Mr. Rosa, and sayB " that all he knew about the case 
was what he had given in evidence before the court at the trial, 
and that that evidence was the truth." In the face of his 
former evidence and the affidavit, the man could not change 
his testimony, even if a new trial was granted. This ground is 
overruled. 

Fourth ground is supported by the affidavit of one R. Gerke 
as to a conversation with Peter Nowlein, foreman of the jury. 
This is met by the counter affidavit of Peter Nowlein, in which 
he denies having had a conversation with Gerke, and denies 
everything contained in his (Gerke's) affidavit. 

A new trial is refused and the motion denied. 

Attorney-General Whiting, for the Crown. 

A, Rosa, for the defendant. 



THE QUEEN V8, YOUNG QUAI. 

Exceptions. 

Hearing, July 16, 1891. Decision, August 12, 1891. 

judd, c.j., bickerton and dole, jj. mccully, j., absent. 

The Supreme Court has ooncairent jurisdiction with the Police and Dis- 
trict Courts over an assault with a weapon, obviously and imminently 
dangerous to life; and when an indictment charging such an offense 
is presented, it need not he averred that the accused has heen com- 
mitted for trial, for the reason that the committing magistrate was of 
opinion that the penalty which he was authorized to impose was in- 
adequate. The fact of such commitment affords the conclusive pre- 
sumption of law that such was his opinion. 

Opinion of the Court, by Judd, C.J. 

An indictment charging the defendant with an assault with 
a weapon obviously and imminently dangerous to life upon 
one Chin Young on the 8th April, 1891, in Honolulu, Island of 
Oahu, was presented against him, the defendant, on the first 



THE QUEEN vs, YOUNG QUAL 283 

day of the term. The indictment was signed by the Attorney- 
General, and a true bill found by Mr. Justice Dole, presiding at 
the term. The defendant demurred to the jurisdiction and 
submits that "the Court had and has no right to find a true 
bill against the defendant herein, for the reason that the juris- 
diction of the Supreme Court to entertain this cause does not 
api)ear upon the records or files herein, nor does it appear that 
the offense stated in said indictment is of a character or quality 
such as gives this Court authority to hear or try the defendant 
upon said charge." The plea was overruled, and exceptions 
taken and brought to this Court. 

By the Penal Code, Section 8 of Chapter IX, the offense of 
assault, or assault and battery, with a knife, sword cane or other 
weapon obviously or imminently dangerous to life, is punish- 
able by fine not exceeding $500 and imprisctnment at hard la- 
bor not exceeding five years. By Chapter Lli. of the Penal 
Code the Police Court and District Courts have jurisdiction for 
the prosecution, trial and sentence to punishment of any person 
charged, inter alia^ with "anj^ assault and battery coming un- 
der the 9th section of the 9th chapter of the Penal Code." 

It follows that the Supreme Court had, by the general law, 
jurisdiction of the case. The requisites of the law as to com- 
mitment, presentation of indictment to the Presiding Judge, 
and his finding a true bill have been complied with. 

Certain Acts of the Legislature, to wit, of 1870, 1880 and 
1882, confer upon the Police and District Courts concurrent 
jurisdiction with the Supreme and Circuit Courts of all cases 
of assault with knives, sword canes and other weapons obvi- 
ously dangerous to life, and in cases where the offense is not of 
a highly aggravated character the Police and District Courts 
may punish the offender by a fine not exceeding two hundred 
dollars and by imprisonment at hard labor not exceeding two 
years, but in cases where such punishment would be inade- 
quate, the offender shall be committed for trial according to 
existing provisions of law. 

It is thus made optional with the lower court either to take 
jurisdiction and proceed to judgment, if it finds the offense to 



284 JULY, 1891. 

be not of a highly aggravated character, or to commit forthwith 
if it finds the offense to be of such a character that the punish- 
ment it is authorized to inflict would be inadequate. In this 
case the magistrate has committed for trial. He has declined 
to entertain summary jurisdiction. There arises, then, a con- 
clusive presumption of law that i he magistrate has found the 
case to be of such a nature that a sentence of two hundred dol- 
lars fine and two years' imprisonment at hard labor would be 
inadequate punishment. It is not necessary that he should 
have so certified in his transcript of the evidence upon which 
the commitment is founded, which he is required to send to 
the Attorney-General. This transcript has been repeatedly 
held to be no part of the record in the Court to which the com- 
' mitment is made. 

It must be bofne in mind that the Supreme and Circuit 
Courts have original criminal jurisdiction co-extensive with the 
jurisdictions for which they are created, and the legislation in 
regard to assaults with deadly weapons has not taken this juris- 
diction away, but has conferred a concurrent jurisdiction over 
them upon the lower courts, where the assault is not of a highly 
aggravated character. See Naihe vs. Kuau, 4 Hawn., 297. 

It is not essential that it appear in the indictment that the 
accused has been committed for trial. This is a matter for the 
Presiding Justice when examining the indictment presented to 
him for allowance. 

If it should appear on the trial upon the indictment that the 
offense was not of a highly aggravated character, and that the 
Police Justice might well have taken summary jurisdiction of 
it, this would not oust the Supreme Court of its concurrent 
jurisdiction. In such a case the defendant w^ould not be preju- 
diced, for the Presiding Justice, in the exercise of his discretion 
over the punishment, would be authorized to impose a penalty 
within the limits of the jurisdiction of the Police Court. 

The case cited by the defendant's counsel. State vs. Hilton, 22 
N. H., 285, is not in point. There, the indictment left out the 
word "knife," so, as the Court say, **all that part of the indict- 
ment which went to make the offense an aggravated assault 



CHIN HEE V8. HO KAM YE. 285 

committed with the knife should be rejected n& surplusage. The 
indictment was thereby left as one for a simple assault and bat- 
tery, and falling within the jurisdiction of a Justice of the 
Peace to try." Upon the statutes of New Hampshire the Court 
held that before the Court of Criminal Pleas could take cogni- 
zance of an indictment for an assault and battery, it must ap- 
pear that respondent had been arrested, brought before a Jus- 
tice of the Peace and bound over to appear at the succeeding 
term of the Common Pleas, and that it was the intention of the 
statute to confine the trial of common assaults and batteries to 
Justices of the Peace. 

In our case the jurisdictional facts are set forth in the in- 
dictment, for an offense is there set out of which the Supreme 
Court has original jurisdiction, and in all such cases the pro- 
ceeding is by indictment upon a commitment by a Police or 
District Justice. This part of the procedure it is not necessary 
to set out in the indictment any more than the fact that the ac- 
cused was arrested for the offense upon a warrant issued upon 
sworn information. 

We overrule the plea. 

Attorney- General Whiting, for the Crown. 

Ashford & Ashfordy for defendant. 



CHIN HEE V8. HO KAM YE. 

Appeal prom Judd, C.J. 

Hearinq, July 16, 1891. Decision, August 12, 1891. 

Judd, C.J., Bickerton and Dole, JJ. McCully, J., Absent. 

A plea in abatement, on the ground of infancy, sustained. 

Opinion of the Court, by Bickerton, J. 

This is a bill in equity for relief under the Act "to regulate 
the passage of water over the lands of those not benefited there* 



286 JULY, 1891. 

by." The defendant pleads in abatement, on the ground that 
the plaintiff, Chin Hee, is an infant of the age of four or five 
years. The Court sustained this plea of infancy and the plaint- 
iff appeals to this Court. 

There is no question of law involved in this case; it is simply 
a question of fact to be found on the evidence, viz: Is Chin 
Hee, the plaintiff in this case, the infant son of Wai Lam? and 
was a certain lease made to the said infant, or was the person 
Ah Yeong Ho, who presented himself to the Court as plaintiff, 
the person to whom lease was made? The Chief Justice found 
the facts to be as follows: 

*•! am of the opinion, on the evidence, that the real plaintiff 
is Chin Hee, the son of Wai Lam, aged about four years. 

"The Chinaman who personated *Chin Hee' and who signed 
the complaint in this case and swore to it before Mr. Carter, the 
notary, is known as Ah Ho, his full Chinese name being Ah 
Yeong Ho. The lease in question, which created the estate in 
Waimalu, Ewa, concerning which relief is asked by this com- 
plaint, was made to 'Chin Hee,' son of Wai Lam, the infant re- 
ferred to. This was testified to by Wai Lam himself in a cer- 
tain road controversy last year, at Ewa, before the Commis- 
sioner of Private Ways. 

**This is a bold attempt by Ah Ho to impose upon the Court." 

Upon a careful review of the evidence, which is conflicting in 
its nature, we are of opinion that the finding of fact by the 
Court below is well sustained by the evidence. 

The plea is sustained and the appeal dismissed. 

J, M, Davidson^ for plaintiff. 

W. jR. Castle, for defendant. 



THE KING vs, WILLIAM JOE. 287 



THE KING vs. WILLIAM JOE and KALAWAIA. 

Exceptions. 
Hearing, July 16, 189L Decision, August 26, 1891. 

JUDD, C.J., BiCKERTON AND DOLE, JJ. McCULLY, J., ABSENT. 

(1) The Ck)nrt will not oonBider the constitutionality of a law tmleBS itB 
repugnancy to the Constitution is pointed out by counsel. 

(2) Where the defendants are charged, under Chapter 40 of the Laws of 

1886, with being by night without lawful excuse in an enclosed pre- 
mises, it is not necessary for the prosecution to show that they are 
vagrants and have no visible means of subsistence. 

(8) The evidence sustains the charge. 

Opinion of the Court, by Judd, C.J. 

The defendants were at the last term of this Court convicted 
by the jury, on their appeal, on a charge of violating Chapter 40 
of the Laws of 1886, by being found by night without lawful 
excuse in or upon the enclosed yard or houses of the Kapiolani 
Home in Honolulu. At the close of the case for the prosecu- 
tion, the defendants' counsel moved the Court to discharge the 
defendants on the following grounds : 

(1) That the law under which the defendants are charged is 
unconstitutional. 

(2) That there is no evidence that either or both of the defen- 
dants are vagrants, or that either or both of them have no visi- 
ble means of subsistence within the meaning of the law. 

(3) That the facts are not sufficient to bring the case within 
the charge. 

This motion was denied, and the question brought to us by 
the bill of exceptions is whether it should have been granted. 

The second ground for the motion to discharge the defen- 
dants is fully covered and disposed of by our opinion in this 
case decided February 10, 1891. We held that the statute in 



288 JULY, 1891. 

question (Chapter 40 of the Laws of 1886) adds to the previous 
law, Chapter 37, Penal Code (which punishes vagrants), sev- 
eral offenses which are acts, such as soliciting alms, subscrip- 
tions or contributions under false pretenses, or entering by 
night without lawful excuse a dwelling house, warehouse, out- 
house or enclosed yard, etc. We said, '* Vagrancy being a status 
rather than an act, a person found guilty of the last mentioned 
offenses, and punished therefor, is not thereby convicted of 
vagrancy, even though the two classes of offenses are defined in 
the same act and punished with the same penalties." AnU, 
page 200. 

On the first ground, that the Act in question is unconstitu- 
tional, counsel for defense having failed to file any brief, we are 
left to conjecture the grounds upon which this Act may be at- 
tacked. It is not for the Court to proceed to the discussion of 
so serious a matter as the constitutionality of a law, unless its 
repugnancy to the Constitution is pointed out by counsel. For 
this reason we pass the point by. 

In answer to the third point, we find that the evidence was 
conclusive that the defendants were found by night on the en- 
closed premises of the Kapiolani Home in Honolulu for chil- 
dren of leprous parents, and that no lawful excuse therefor was 
shown by them. We therefore overrule the exceptions. 

Deputy Attorney- Oeneral Creighton, for the Crown. 

A, Rosa and /. L. Kaulukou, for defendants. 



PHILLIPS V8. McCHESNEY. 289 



M. PHILLIPS A CO. V8. F. W. McCHESNEY, Assignee. 

Aqreed Submission. 
Hearing, July 16, 1891. Decision, September 28, 1891. 

JUDD, C.J., BiCKERTON, DoLE, JJ. McCuLLY, J., ABSENT. 

A mortgagee of a stock of goods is entitled to the remaining goods that 
were in possession of the mortgagor at the date of the mortgage. 

A mortgagee, holding a chattel mortgage on a sfcock of goods and after- 
acquired stock, must take actual possession of said stock of goods be- 
fore the intervention of third parties or the commencement of pro- 
ceedings in bankruptcy, fco give him a legal title in the same. 

Statement of Facts. 

W. H. Daniels, of Wailuku, on the 1st day of May, 1889, then 
commencing business as a retail trader, made a mortgage to said 
M. Phillips <t Co., a copy of which is hereto annexed and made 
a part hereof, which was duly placed on record. Said mortgage 
was given to secure the account of said M. Phillips & Co. for 
goods sold and goods agreed to be sold to said Daniels. Said 
Daniels since giving said mortgage has carried on said business 
and has purchased goods from other dealers, and has inade pay- 
ments ou account to them and is now indebted to them for such 
goods. 

On March 25th, 1891, Phillips & Co. made demand upon said 
Daniels for payment of the balance of his account due them for 
said goods and other goods sold to him from time to time, then 
amounting to $4,514.36. Upon said Daniels refusing to pay the 
same, Phillips & Co. demanded of him, at said Wailuku, pos- 
session of all of his stock in trade, goods, wares and merchand- 
ise, chattels and fixtures then in his said store, claiming to be 
entitled to the same under said mortgage. Delivery of posses- 
sion was refused. 
19 



290 JULY, 1891. 

On March Slst, 1891, a petition was filed in the Supreme 
Court to have said Daniels declared a bankrupt, and on April 
13th, 1891, a decree of bankruptcy was entered against him. F. 
W. McChesney was chosen assignee in bankruptcy of said 
Daniels, and is in possession of said stock of goods of said 
Daniels. 

The questions of law are as follows: 

1. Are M. Phillips & Co entitled to the possession of such 
portion remaining, if any, of said stock which was in said 
Daniels' possession at the date of said mortgage? 

2. Are M. Phillips & Co. entitled to^he possession of all of 
the goods, chattels and fixtures in said stock acquired by said 
Daniels after the date of said mortgage, and in his possession at 
the date of their demand? 

Opinion of the Court, by Bickerton, J. 

The first question of law must be answered in the affirmative. 
It has always been held by this Court that chattel mortgagees 
are entitled to the possession of such portion remaining of the 
stock that was in possession of the mortgagor at the date of the 
mortgage. See Hardy vs. Buggies, 1 Hawn., 409; Spenrer vs. 
Bartow, 3 Hawn., 719. This was held to be the law in the 
recent case of W. C. Parke, Assignee, vs. L. J. Levey, and in 
other cases not reported. 

The second question of law raises a new point. There is a 
clause in this mortgage which reads: ^^ All my stock in trade, 
goods, wares, merchandise, chattels and fixtures in my store in 
Wailuku aforesaid, and all after-acquired goods, wares, mer- 
chandise and chattels that shall be purchased by me out of the 
proceeds of sales of the present stock." 

In. the first place, it does not appear by anything before us 
that any of the goods in the possession of DanielB, the mort- 
gagor, at the date of the bankruptcy, were bought with the pro- 
ceeds of goods in his stock at the date of the mortgage. In the 
case of Spencer vs. BbtIow cited above, it was shown that a set 
of furniture that was covered by the mortgage was exchanged 
for a buggy; the Court held that the mortgagee was entitled to 



PHILLIPS V8, McCHESNEY. 291 

the buggy, for it was substituted for the set of furniture, and 
that would be no different from selling the furniture and with 
the proceeds purchasing the buggy. Nothing of the sort appears 
here, how could it in a general retail store like this one; goods 
were being sold and new goods bought from a number of dealers, 
and became commingled in the general stock of the store. It 
would be impossible to say that any particular lot of goods 
were bbught with the particular proceeds of the original 
goods covered by the mortgage. But the plaintiff does not 
seem to rely much on this, but claims that he is entitled to 
the possession of the after-acquired stock of goods, the payment 
of the debt having been refused after due demand, and demand 
having been made of Daniels at Wailuku for the possession of 
all of his stock in trade, goods, wares, etc., etc., then in his said 
store, the mortgagee claiming to be entitled to the same under 
said mortgage. Delivery and possession was refused. There is 
no question as to the right of the mortgagee to the possession of 
the remainder of the original stock at date of mortgage : the 
authorities cited by plaintiffs sustain this position : but the 
question is, what is necessary to be done in regard to the after- 
acquired property or stock to secure to him the title in it. The 
plaintiff relies strongly on the case of Chase va, Denny ^ 130 Mass., 
566. In that case the mortgagee of his own motion, four days 
before proceedings in insolvency were begun, and nineteen days 
before the mortgagor was adjudicated a bankrupt, took actual 
possession of all the property covered by the mortgage. The 
mortgage covered after-acquired property, and it was admitted 
that all the property taken was acquired by the mortgagor after 
making of the mortgage. Soule, J., in giving the decision of the 
Court, says: "It has been repeatedly held in this common- 
wealth that a mortgage, purporting to convey all the chattels of 
specified kinds which may thereafter be acquired by the mort- 
gagor, does not give any title to those chattels when acquired 
by him unless the mortgagee takes possession of them." ♦ ♦ ♦ 
" If, however, the after-acquired property is taken by the mort- 
gagee into his possession before the intervention of any right of 
third persons, he holds it under a valid lien by the operation of 



292 JULY, 1891. 

the provision of the mortgage in regard to it. This was held to 
be the rule in the case of Moody vs, Wright^ 13 Met., 17, and we 
see no reason to question its correctness." 

In that case the mortgagee did not gain possession of the 
after-acquired property before the proceedings in insolvency were 
set on foot, and the mortgage was held to be inoperative against 
the assignees in insolvency. 

Soule, J., further says: ''Such taking of possession, though 
effected immediately before insolvency proceedings were insti- 
tuted, and with full knowledge of the insolvency of the mort- 
gagor, would not be the acceptance of the preference, but the 
assertion of a right which had been previously acquired by the 
mortgagee under an instrument in writing made when the par- 
ties to it were both competent to contract, and when there was 
no qualification of the right of either to deal with the other." 

In the case at bar, the plaintiff mortgagee did not take actual 
possession of the chattels; on the contrary, he was refused pos- 
session by the mortgagor. 

In the case of Mitchell vs. Wiselow^ 2 Story, 630, cited by 
plaintiff, the agent of the mortgagee took actual possession of 
the property. "Constructive possession under a chattel mort- 
gage is ineffectual. The right to possession is by virtue of the 
contract and not, as in an execution, by virtue of the law. Pos- 
session must be taken in fact; it cannot be taken by words and 
inspection. It must be actual, open, public." Jones on Chat- 
tel Mortgages, Sec. 186. 

There is not a case cited, nor do we find a case that supports 
the position taken by the plaintiff, viz., that upon making de- 
mand for possession of the mortgaged stock, the estate of the 
mortgagees became absolute and that they had the legal title 
to the property. On the contrary, the authorities seem to be 
all the other way. The mortgage creates a lien on the after-ac- 
quired property, but to complete his title to the property the 
mortgagee must take actual possession of it before the proceed- 
ings in bankruptcy are set on foot, or before the intervention of 
third parties. 



KEKAHA SUGAR CO. vs. HAWN. GOVT. 298 

We have therefore to answer the second question of law in 
the negative. 

F. M. Hatchy for plaintiff. 

W, 0. Smith, for defendant. 



KEKAHA SUGAR COMPANY vs, HAWAIIAN GOV- 
ERNMENT. 

MEIER AND KRUSE vtt. HAWAIIAN GOVERNMENT. 

Submission on Agreed Pacts. 
Hearing, August 26, 1891. Decision, October 30, 1891. 

JuDD, C.J., Bickerton and Dole, JJ. McCully, J., Absent. 

The taxation of a contract to oultivate sugrar cane on the one part, and to 
manufacture it on the other part, is illegal, for the value of the prop- 
erty affected by the contract has been enhanced by whatever value 
there is in the contract, and being assessed therefor, any assessment 
of the contract would be an additional assessment of a value already 
assessed, which would involve double taxation. 

Labor contracts are not taxable, not being assignable, and having no as- 
sessable value in themselves. 

Opinion of the Court, by Judd, C.J. 

The Legislature of 1886 added to the definition of what shall 
be deemed personal property, for the purposes of taxation, — 
"jewelry, watches, machinery, franchises, patents, contracts." 
All but the last three items are clearly "goods, chattels, wares 
and merchandise," by the previous law taxable, and the par- 
ticular enumeration of "jewelry, watches and machinery" added 
nothing to the law. Franchises and patents are not tangible ob- 
jects, but in so far as they have value it may be that they are 
taxable. They are not questioned in these cases. In the cases 
before us we have to consider whether certain contracts are 
taxable. The contract introduced in evidence before us is 



294 AUGUST, 1891. 

an agreement, in three parts, between the owner of certain land 
on Kauai, the proprietors of a sugar mill and the planters of 
sugar cane. This contract, together with some labor contracts, 
has been assessed to the mill proprietors as worth to them 
$37,000 in 1889 and $25,000 in 1890, and to the planters as 
worth to them $10,000 in 1889 and $9167 in 1890. The record 
shows that the taxes thereon have been paid under protest by 
both these parties for the years 1889 and 1890, and the object 
of these suits is to recover the taxes thus paid, with interest. 

It is contended by counsel for the Government that the Legis- 
lature having made ^'contracts," as such, taxable, it is not for 
the Court to annul this law. 

Mr. Hatch, for the plaintiffs, submits that '* to assess contracts 
would be a violation of the rule against double taxation laid 
down in Castle vs. Luce, 4 Hawn., 63. All of the tangible prop- 
erty in regard to which a contract is made is taxed. If the con- 
tract be to build a house, the land on which the house is to be 
built is taxed, so are the building materials which are to go 
into the house. What remains to be taxed? Nothing. Hu- 
man labor is not to be taxed unless men are treated as chattels. 
How then can an agreement to perform labor be a proper sub- 
ject of taxation? A contract creates no new value. It is an 
agreement to do something or to refrain from doing something. 
It is not property which can pass from hand to hand and be 
sold in open market. Profit may be made out of contract, but 
man's profits, industry, foresight, intrepidity and hopes are not 
taxable. What limit can be pliaced upon the term "contracts" 
for taxable purposes? It cannot be restricted to contracts in 
writing. If any contract is to be taxed, then why not all 
contracts, as those for the sale of goods over a counter, that be- 
tween a physician and patient, a householder and his cook? 
The value of a contract cannot be apportioned between the par- 
ties to it. The full value cannot be taxed to both. In so far 
as the contract is peculiarly beneficial to one party it is a bur- 
den to the other. In the case at bar, besides the labor con- 
tracts, is the contract for making sugar. It is tripartite. It is 
an agreement for doing work. Yet the land, the cane, the 



KEKAHA SUGAR CO. vs. HAWN. GOVT. 296 

mill and machinery are all taxed. The work can only be done 
at that mill. Every item of property which makes the con- 
tract of any value has been taxed." 

**A contract, moreover, is merely the evidence of an agree- 
ment; the title upon which one may demand that something 
shall be done. It is no more taxable than title deeds or other 
evidences of rights. If a contract is assessable, why not the 
breach of it. A breach is capable of exact computation. This 
would lead to the taxation of choses in action." 

Without going into the general question whether contracts 
may be taxed under our statutes, we fail to see how the princi- 
pal contract before us has any value separate and apart from 
the tangible property, for the management of which it was en- 
tered into. The land, the crops of cane, the mill and machin- 
ery are all assessed, and taxes on them have been paid. And, 
presumably, the fact that the land was being cultivated and 
the canegrown and the mill run to manufacture sugar under a 
contract to do so, has entered into the assessed value of this 
property. To tax every item of tangible property and then tax 
an engagement for the management or use of this property 
would, under these circumstances, be double taxation, which is 
unconstitutional. 

The labor contracts are also assessed. These are engage- 
ments in writing for personal services by human beings, to be 
paid for in stipulated sums. These are not assignable. They 
may be valuable to the employer or not, according as to whether 
the wages paid are high or low, and whether the labor per- 
formed is efficient and produces a profit. They cannot be sold 
in market overt, and their assessable value to the employer, if 
they have any, is conjectural and uncertain. We think they 
are not taxable. 

Let judgment be entered for the plaintiffs, as claimed. 

F. M: Hatch, for plaintiffs. 

Deputy Attorney 'General Creighton, for defendant. 



296 AUGUST, 1891. 



IN THE MATTER OF MOSES MAHELONA, Police JuBtice. 

Complaint for Malfeasance. 
Hearing, August 26, 1891. Decision, August 81, 1891. 

judd, c.j., bickerton and dole, jj. mccully, j., absent. 

The respondent had been oonvicted of the offense of adultery and had ap- 
pealed therefrom ; a decree of divorce had been entered against him 
on the ground of adultery ; he lived outside of the district wherein 
his court was situated, and he had failed to make returns of fines and 
costs for a i)eriod of four months : Held, that good cause had been 
shown for his diflmisHal from office. 

Opinion of the Court, by Dole, J. 

The respondent, the Police Justice of the District of Ewa, 
Island of Oahu, is charged with having been convicted of the 
offense of adultery on the 24th day of July last; with residing 
out of the district, in Honolulu; and with neglecting to make re- 
turns of costs and fines collected by him since March last. The 
complaint prays that if these charges are sustained or if it shall 
appear from any cause that the respondent is unfit longer to 
hold said office, he be dismissed therefrom. 

The respondent in his answer admits the alleged conviction 
of adultery, but contends that it does not constitute a cause for 
removal from office, and alleges that he has appealed from such 
conviction to the Supreme Court. He further admits the 
charge of non-residence, and says that he has endeavored to 
secure a place of residence in the district but has been unable 
to do so on account of high rents, and also that there has been 
no failure of justice in consequence of such non-residence. He 
also admits the failure to file his returns for the quarter ending 
June 30th, 1891, but alleges that he has now filed them. 

Upon the examination, a decree of divorce on the ground of 
adultery of this respondent, filed in the cause of Susan K. Make- 



IN RE MAHELONA- 297 

lona vs, Moses Mahelona and dated August 1st, 1891, was offered 
in evidence, and it was admitted that this respondent has since 
married the co-respondent in the divorce case. It also appeared 
that no returns had been made for the four months since 
March last. 

It is very important that Police and District Justices should 
live conveniently near their offices. The delay of the respon- 
dent for over four months to make his returns is a serious de- 
fault in a Police or District Justice, the law requiring returns 
to be made monthly, and would in itself be a sufficient ground 
for removal from office. Immorality of the character suggested 
cannot be overlooked in a justice, and a conviction, even though 
appealed from, supported by a decree of divorce on the ground 
of adultery, is sufficient to show such immorality in proceed- 
ings of this nature. 

We think that good cause is shown for the dismissal of the 
respondent Moses Mahelona from his said office of Police Jus- 
tice for the District of Ewa, Island of Oahu, and we so order, 
with costs. 

Deputy Attorney- General Creighton, for prosecution. 

A, RosUy for respondent. 



298 AUGUST, 1891. 



IN THE MATTER OF NOAH KAAA, District Justice. 

Complaint for Malfeasance. 
Hearing, August 26, 1891. Decision, August 31, 1891. 

JuDD, C.J., Btckerton and Dole, JJ. McCully, J., Absent. 

Certain misconduct of a District Justice reviewed^ and held to be suffi- 
cient ground for his removal. 

Opinion of the Court, by Judd, C.J. 

On the 6th of August, the Attorney-General presented a com- 
plaint against the respondent, charging him with certain mis- 
conduct, and praying for his dismissal from the office of District 
Justice of Kipahulu and Kaupo, Maui. He appeared on the 
26th as required by the summons, made answer, and the Court 
heard the matter and the evidence adduced on both sides. 
We find the facts to be substantially as follows : 
In the evening of the 14th of last March, Saturday, while the 
respondent was at Kipahulu, Maui, stopping at the house of 
Halualani, a policeman, S. W. Kahele, came to him with one 
Hairama, a youjig man, and stated that Hairama had just 
bought a bottle of wine from a Portuguese storekeeper, Long- 
dell by name, and desired a warrant for the arrest of the Portu- 
guese for selling spirituous liquors without a license. The 
Judge asked Kahele how many witnesses he had. Kahele re- 
plied that only Hairama saw the Portuguese sell the wine, but 
that he Kahele was outside the house, and saw Hairama go into 
the house and return with the wine, which he immediately took 
into his possession. He then produced it before the Judge. 
The Judge said that one witness was not enough. From this 
point there is a divergence in the testimony. Kahele says that 
the Judge further said it was useless to bring the case, that it 



IN RE KAAA. 299 

could not be proved by only one witness, and moreover how 
did Kahele know the bottle contained wine, it might be it was 
only water ; whereupon Kahele said, ** Mr. Renter, the Deputy 
Sheriff, will be here to-morrow (Sunday) morning and if he 
takes your view of the case it will not be brought ;" that the 
Judge then said that the case better be dropped and that they 
better drink the wine up, and asked Kahele for the bottle, took 
it down stairs where there were a number of people, Luika, Ha- 
lualani, Hairama, Pueiki, and they all drank it together, he and 
the Judge taking their share. 

The Judge says that he told Kahele that there must be more 
evidence, and Kahele went away taking the bottle in his coat 
pocket. He remained upstairs writing and when he went down 
stairs he found a party of natives evidently drinking and noisy, 
bade them be more quiet and then went out, picked up Kahele 
and went to the plantation quarters to find the natives who 
Hairama had said were in the store when he bought the wine 
from the Portuguese. Kahele had told the Judge that he had 
gone into the Portuguese store with the bottle, and then the 
Portuguese had denied selling the bottle, and that John Kahila- 
hila, Kaialomi and Manana who were in the store, as Hairama 
said, when he bought the bottle, had also denied that the wine 
had been sold to Hairama. It is therefore impossible to con- 
jecture what further evidence could be obtained. Yet the Judge 
insisted that they should search for more. This was about 10 
o'clock at night and he waited about half an hour to find the 
witnesses ; while waiting he saw a Japanese, the plantation 
night watchman, sitting on a verandah, went up to him and 
said, ** You muat be cold, here is something for to drink." The 
Japanese took the bottle, but said he had no means of 0{)ening 
it there, so as Kahele came along just then, the Japanese gave 
him the bottle and Kahele took it off. Hairama corroborates 
Kahele in every essential particular of his statement of his in- 
terview with the Judge and of their drinking the contents of 
the bottle, which was the ordinary red wine used by the Portu- 
guese. 

All agree that a warrant for the arrest of the Portuguese was 



300 ^ AUGUST, 1891. 

made out, dated and signed that Saturday night, and that it 
purported to be upon the information and oath of Hairama and 
was kept by the Judge in his possession. The Judge had de- 
clioed to issue the warrant on oath of Kahele, the policeman, 
because he was not an eye-witness to the offense, and Kahele per- 
sisted that it could not issue on Hairama's oath and that none but 
a constable could procure the issuat)ce of a warrant. Kahele also 
makes the very extraordinary statement that on Sunday morn- 
ing he was present and heard the Judge tell the Portuguese 
that he need not be afraid in regard to the charge of liquor sell- 
ing» since the wine had been drunk up. 

All agree that Mr. Renter, the Deputy, Sheriff, came to Kipa- 
hulu the next day, Sunday, and that in the afternoon he sent 
Kahele for the warrant from the Judge and that it was served. 
Also that the case was tried on the Wednesday following, and 
that a full bottle of wine was produced by Kahele in Court and 
sworn to by both Kahele and Hairama as being the identical 
bottle that was bought of the Portuguese on Saturday night, the 
14th of March. These men admitted to us that when they so 
swore they kn/ew it was false, for they had helped drink up that 
bottle of wine. Owing to some discrepancies between Kahele 
and Hairama as to who actually furnished the money, fifty 
cents, which bought the wine, Mr. Renter, the Deputy Sheriff, 
nolL prosed the case. 

Up to this time not a word was said by any one that the 
bottle of wine before the Court was the substituted bottle. But 
one Hakuole, on the Sunday morning, was told by the Judge 
that on the previous evening Kahele had come to him for a 
warrant of arrest for a Portuguese for selling liquor, and on the 
Judge's asking him how many witnesses he had, and his saying 
only one, he had told Kahele that he jcould not convict on that, 
and that he had better take the wine and drink it, which they 
did. Hakuole says he told this to the Deputy Sheriff, Reuter, 
some time after, at Hana. The Deputy Sheriff says that when 
he heard this he wrote to Kahele, who returned the answer that 
the bottle of wine sworn to in Court was the one bought by Hai- 
rama of the Portuguese. He also says that Noah Kaaa, the 



IN RE KAAA. 301 

respondent, told him in Hana, in May last, that '^ the bottle of 
wine bought of the Portuguese had been drank up ' by us' " 
(makou). 

U'hile being hardly willing to convict a District Judge of 
such serious misconduct as '^ drinking up the evidence" in 'a 
criminal case with the evident intention of shielding the accused 
Portuguese, u{)on the testimony of two such men as Kahele and 
Hairama who admitted their perjury in our presence, we are not 
satisfied but that it may be true that the Judge proposed to 
have the case dropped and did help drink the wine. He admits 
that when he came down stairs and noticed that the natives 
were drinking and Hairama was ** hula-ing," he made no en- 
quiries as to where their drink came from. He explains his extra- 
ordinary oflFer to give the wine to a Japanese, respecting the sale 
of which he had just issued a warrant, that it was only in jokel 
He says he knew that it was not proper for a Judge to go about 
with an officer hunting up evidence to prove a case which he 
was to try thereafter, but says he had to do so since the Deputy 
Sheriff was so seldom in that part of the district. He admits 
that he never afterwards tried to ascertain where the substituted 
bottle of wine came from. If we disregard altogether the evidence 
of Kahele and Hairama that the Judge helped drink the wine, 
there remains the testimony of Hakuole, unshaken except by the 
Judge's own denial, which shows that the Judge knew when he 
tried the case against the Portuguese that the wine placed be- 
fore him was not the wine which Hairama said he had bought, 
and yet he allowed the farce to proceed until it was stopped by 
the Deputy Sheriff. 

We think that great weight ought to be given to the admis- 
sion of the Judge to the Deputy Sheriff that the ^^ bottle was 
drunk up by u«." The Deputy Sheriff believed that this was 
true and acted upon it by immediately beginning investigations 
which resulted in this information. 

We remark that the respondent has but little legal knowledge, 
as is evidenced by his allowing the name of " Hairama" to be 
erased as the deponent to the warrant, and himself substituting 
therefor the name of ^^ Kahele, constable of Kipahulu," without 



302 AUGUST, 1891. 

swearing Kahele to the warrant. Hairama said he did not 
swear to it, and it is doubtful if it was supported by any oath. 

Taking all these facts into consideration, we are of opinion 
that the respondent, Noah Kaaa, is unfit to longer hold the office 
of District Justice of Kipahulu aad Kaupo. and accordingly 
remove him from the said office. He to pay costs, taxed at 
$50.00. 

Attorney- General, for prosecution. 

W. R, Ca$tl€y for respondent. 



BANKRUPTCY OF AIONA. 
Instructions to Assignee. 
Hearing, August 27, 1891. Decision, September 1, 1891. 

JuDD, C.J., Bickerton and Dole, J J. McCully, J., Absent. 

Creditors in bankruptcy, whose claims are disputed by the assignee, have 
a right of action against him. 

If such right of action is not exercised before the final order in bank- 
ruptcy, it is estopped. 

Parties interested may appeal from the final order to the Full Court (Sec- 
tion 21, Bankrupt Act). 

Opinion of the Court, by Dole, J. 

The following questions were addressed to the Chief Justice, 
but we have deemed the matter to be of sufficient importance for 
a regular hearing and argument before us. 

Thow Choy, Assignee in the above case, comes before the 
Court and asks instructtoafl herein, under the following condi- 
tions: 

'^ He has collected thus far on behalf of the estate of said 
bankrupt sufficient to pay about forty per cent, of all claims not 
refused under Section 8 of the Bankrupt Act, as amended by the 
law of 1888. 

" Under the provisions of said Section 8, he duly refused in 
writing, within the prescribed time, certain claims aggregating 



BANKRUPTCY OF AIONA. 303 

$5,167.45, and the several claimants so refused have not taken 
any further proceedings in the matter, though their said several 
claims have been so refused over six months. 

^'That the claims allowed amounted in the aggregate to 
$3,865.06, on which he has paid to the several claimants the 
amount of 25 per cent, as a first dividend. 

"That he has still in hand sufficient to pay (say) 15 percent, 
additional upon the claims allowed as above; but is advised by 
counsel that it would be unsafe to pay further upon the above 
accepted claims, while those refused as above are in the present 
unsettled condition." 

Section 8 of the Bankrupt Act, as amended, reads as follows: 
" Any creditor may object to the allowance or proof of any claim 
and the hearing shall be had before the Justice, and any creditor 
whose claim is so objected to shall have no voice in the choice 
of assignees, provided, however, that the creditor or creditors 
making such objection file an affidavit that such objection is 
bona fide, and is not made for the purpose of depriving the 
creditors objected to of having a voice or vote in the election of 
assignees. Either party or the assignees may take an appeal 
from the decision of the Justice to a jury, upon complying with 
the requirements in regard to appeals contained in Section 21. 
The assignee or assignees shall within one month after his or 
their appointment, or within the same time after the receipt by 
him or them of any claim proved against the bankrupt's estate, 
notify the person or parties who have so proved whether such 
claim is disputed by him or them." 

The Act, until amended in 1888, undoubtedly supported the 
position that the formal proof before the presiding Justice was 
final if not appealed from, as appeal is allowed to a jury from 
the allowance or disallowance of any such claim. No other 
proof is provided for, and the assignees are required " to make 
aB many dividends of said estate as they may think proper, not 
to exceed five, among the creditors who have proved their 
claims." (Section 13, Chap. 35, Laws 1884.) The amendment 
to Section 8, passed in 1888, as above set forth, requires the 
assignee to notify creditors who have proved their claims 



' 



304 AUGUST, 1891. 

whether or not their claims are disputed by him, but there is 
no further provision as to the duties of the assignee or of the 
creditor in relation to a disputed claim. It is clear that the 
creditor would have a right of action in such case against the 
assignee; but how long his right of action shall survive, the law 
does not inform us. 

The only part of the statute that affords any assistance to the 
solution of this problem is Section 23, which is as follows: 
" Preparatory to the final account and dividend, the assignee or 
assignees shall submit his or their accounts to the Justice and 
file the same, and shall thereupon give notice to all the creditors 
who have proved their claims, that he will apply for a settle- 
ment of such accounts and for a discharge, from all liability as 
assignee or assignees at a time specified in such notice. At the 
hearing, the Justice shall audit the accounts, and any persons 
interested may appear and contest the same. The Justice may 
thereupon, at his discretion, pass the accounts and order a 
dividend of any portion of the estate remaining undistributed, 
and shall discharge the assignee or assignees." 

This section provides for a final settlement of the estate before 
the presiding Justice, upon due "notice to all the creditors who 
have proved their claims," which includes those creditors whose 
claims have been proved before the Justice and afterwards dis- 
puted by the assignee. This hearing gives an opportunity to 
such creditors to test the assignee's accounts and to show that 
the disputed claims ought to be recognized. The decision of 
these questions by the Justice is final, unless appealer! from, 
and the order of the Justice in the matter will stop all claims 
and all rights of action, except in case of an appeal from such 
order. 

Although the right of appeal to a jury is given in Section 8, 
from the decision of a Justice, in allowing or disallowing claims 
in the first instance, such right is confined to the preliminary 
proofs of claims, and is not intended to apply to the final order 
of the presiding Justice, the appeal from which is to the Full 
Court, under Section 21. 

C W. Ashford, for questioner, assisted by P, Neumann. 



THE QUEEN t?«, KAKA, 305 



THE QUEEN vs, JIM KAKA. 

Appeal from Police Justice of Honolulu. 
Hearing, August 27, 1891. Decision, September 3, 1891. 
judd, c.j., bickerton and dole, jj. mccully, j., absent. 

The collecting by defendant of marked words, receiTing stakes from play- 
ers in a lottery or gambling game called ** Che Fa,*^ and returning to 
the player his prize, if he won, is sufficient evidence that he assisted in 
managing or conducting a lottery, without further proof that such a 
game was in existence, or that defendant solicited players to engage 
in it. 

Opinion of the Cout, by Judd, C.J. 

On the 7th July the defendant was charged in the Police 
Court of Honolulu with violating Chapter 41, Section 3, of the 
Laws of 1886, in Honolulu, during two months last past, by 
assisting in managing or conducting a lottery, to wit, a '^ che 
fa " game. 

He was found guilty, was sentenced and appealed to this 
Court in banco on the point of law that the evidence is insuffi- 
cient to sustain the conviction, there being no proof that a lot- 
tery or banking game was in existence which the defendant 
assisted in managing or carrying on. 

Mr. Neumann, of counsel for defendant, urges that in order 
to convict the defendant of assisting in the management of a 
gambling game, it must be shown either that such a game was 
being carried on or that defendant solicited others to take 
chances in such a game, which would be evidence of the exis- 
tence of such a game. 

The evidence sent up is as follows : 

Evidence. 

Defendant collects money and tickets in Honolulu, has been 

doing it every day for past month ; I gave him my ticket on 
20 



306 AUGUST, 1891. 

June 27, 1891, with 40 cents ; gave him none before or since; 
I won on one word, won $3, got the $3 from defendant. I gave 
him my ticket about 1 p. m., got the money in the evening at 
Mary Akoni's place, from Kaka ; many others were present ; 
Geo. Sea, Lui Self, were there ; Moses Keumi was inside the 
house. (Wm. Coggeshall). 

I met defendant the week before the last in June ; I had 
heard of a che fa game, so I told defendant to take my ticket 
and put it in the bank. The ticket I gave him had something 
to do with che fa ; I am not familiar with the game ; I did not 
give defendant any ticket ; gave him 20 cents to play, because 
I knew he was acquainted with the game. (Ikake). 

I took defendant a che fa ticket last Thursday and gave him 
30 cents ; I don't know what he did with them. I wrote poo- 
lio, mookalani and popoki on the ticket ; I lost. This is the 
only time I played che fa; I did not see defendant after he 
took the money and ticket. (Kalilikane). 

Defendant has been dotting words lately for che fa ; if I have 
6 cents I get $1.60 ; if I hit the word that I dot, I get $1.50. I 
write a word on a paper, and put 5 cents on it ; I give the paper 
to a man; if I hit the word I get $1.50, if not, I lose; I have 
played this game, not very often ; when I get 5 cents I dot 
words ; I have done it about five times in the past two months ; 
I wrote my ticket myself, gave it to defendant sometimes ; I 
gave him a word on the day Moses was arrested ; I have won 
5 cents,^but have usually lost ; I have won $1.50 on a 5 cent 
investment, got the money from defendant; don't know where 
he got it. (Kailihaona). 

In addition to the foregoing, counsel agree that the following 
testimony was given by D. Kaapa in the Court below : 

^' I know the game of che fa, it is a game of 36 words, it is a 
banking game ; sometimes 1, 2, 3 or 4 words are held out by 
the bank, leaving the player the balance ; the person who 
guesses the right word wins; the winner gets in ratio of 30 to 1; 
if a man puts in 5 cents he wins $1.50 ; a riddle has to be dis- 
tributed amongst the players ; the man who guesses the word 
gets the prize." 



THE QUEEN V8. KAKA. 307 

■ 

It was also stipulated by counsel that all witnesses were 
asked if defendant ever solicited them to purchase chances, and 
that they testified he did not. 

By the Court. 

We think the evidence is plenary on which to convict defen- 
dant. The witnesses say that for some time past the defendant 
has taken " tickets," or rather, the words chosen and marked 
by the player, and the entrance fees or bets from the public 
indiscriminately, and after a while he returned to the player 
the money, if the word had won. 

This is assisting in managing or conducting the lottery. 
Without the defendant's participation or of some one to collect 
the words chosen by those who wished to engage in this gam- 
bling and take money they hazarded, no such game could be 
carried on. Nothing remains to be done by the principals in 
the game of che fa, except to propound the riddle and put out 
the 86 words from which the winning word is to be guessed by 
the players, and, when the numbers are in, to announce the 
result. The principals may not see or meet the players at all. 
The runner or agent, such as the defendant is, deals with the 
public. The act of receiving the marked word from the player 
and the amount staked by him, affords evidence that such a 
game is in existence, either organized and conducted by others 
or by himself. And these inculpatory facts would put upon 
the defendant the burden of proving that no such game existed, 
in which case he would either have committed a gross cheat in 
taking money on the false pretence that the stakes were to be 
played at a che fa game, or if he should show it was his own 
game he would be discharged of the offense of assisting and be 
held as a principal. 

It was not necessary for the prosecution to show that the 
defendant solicited others to mark words and to put up their 
money on these marked words. Thfi evidence shows that the 
witnesses knew what his occupation was in this respect and 
acted accordingly without solicitation on his part. The act speaks 
for itself and is the same whether he solicited the stake or not. 



308 AUGUST, 1891. 

No word need be spoken. What necessity for solicitation if the 
would-be player knows all that the runner could tell him? 
Moreover, the exhibition by the defendant to the player of the 
list of 36 words put out by the managers of the game is suflfi- 
cient evidence of solicitation without a word being spoken. 

We think the conviction should stand. " Appeal dismissed. 

Attorney- General, for prosecution. 

P. Neumann, Ashford & Ashford, Huntsman & Nawahi, and 
J. L, Kaulukou, for defendant. 



HUTCHINSON SUGAR COMPANY vs. HAWAIIAN GOV- 
ERNMENT, and O. T. SHIPMAN, Deputy Tax Assessor. 

Submission on Agreed Facts. 
Hearing, August 27, 1891. Decision, October 20, 1891. 

judd, c.j., bickerton and dole, jj. mccully, j., absent. 

A pereon holding an appointment from the Hawaiian Government, whidi 
is of value to himself, either from the pay or salary belon^ring to the 
position or because of business patronage which it promotes, is not a 
'* disinterested person *' under Section 45 of the Law of Internal Taxes, 
and is disqualified from sitting as a member of a Tax Appeal Court 

Opinion of the Court, by Dole, J. 

This case comes before us upon the following stipulation : "It 
is agreed that this cause shall be heard by the Supreme Court 
in banco in the first instance. It is agreed that the question 
submitted to the decision of the Supreme Court shall be whether 
or not, on the facts presented by the record, the proceedings of 
the Tax Appeal Court in this matter were invalidated by said 
C. Meinecke's sitting and acting as a member. And that if so 
invalidated, the prayer of the petitioner shall be granted." 

The circumstances of the case are these : In 1890 the plain-* 
tiff made its returns to the assessor of its property situate in 
Kau, on the island of Hawaii, in the amount of $411,909.98. 



HUTCHINSON SUGAR CO. vs. HAWN. GOVT. 309 

The assessor raised the valuation to $661,918.50, from which 
asseBSinent the plaintiff appealed to the tax appeal court, of 
which one C. Meinecke is a member. The plaintiff protested 
against the said C. Meinecke Hitting as a member of the said 
court at the hearing of the said appeal, on the ground that he 
was not disinterested, being employed by the Hawaiian govern- 
ment as postmaster, under a salary, and was therefore disquali- 
fied, and also on the ground that he was hostile to and preju- 
diced against the plaintiff and was engaged in litigation with it, 
and was thereby biased. 

The tax appeal court, notwithstanding the plaintiffs protest, 
heard the case and rendered a decision therein, fixing the value 
of the plaintiff's property for taxation purposes at $613,861.00 
and costs at $202.00, upon which valuation the plaintiff paid 
taxes, together with the said costs, under protest. 

The law provides that the several tax appeal courts shall be 
composed of a circuit or police judge, "together with two disin- 
terested persons, to be appointed by the Minister of Finance." 
Was C. Meinecke disqualified from sitting as a member of such 
a court by reason of his office of postmaster or of the litigation 
with the plaintiff? The evidence shows hostile language 
against the plaintiff on the part of Meinecke, but does not defi- 
nitely fix the time when it was uttered, except that it was be- 
fore the sitting of the tax appeal court. It may have been so 
long before as to be without importance to the issue raised. In 
regard to the connection of Mr. Meinecke with the Hawaiian 
Government — one of the defendants — as postmaster, we think 
that that is a relation which tends to undermine the impartial- 
ity of one subject to it. The position, indeed, was probably not 
an important one and the salary may have been small, but it 
may have been of value to Meinecke ; his business as a store- 
keeper would naturally have made the establishment of the dis- 
trict post office in his store a matter of importance to him from 
the number of persons who would be thereby constantly drawn 
to the building. 

We are therefore of the opinion that C. Meinecke was not a 
disinterested person in the meaning of the statute, and was 



310 SEPTEMBER, 1891. 

therefore disqualified from acting as a member of the tax appeal 
court in question, and that the said action of the said court was 
illegal and must be set aside. The excess of taxes paid by the 
plaintiff over those due on the returns made by it, together with 
the costs of the appeal and interest, must be returned to the 
plaintiff by the defendants. Decree accordingly. 

F. M, Hatch and C, L, Carter, for plaintiff. 

A. P. Peterson and Attorney- General Whiting y for defendants. 



KAHOOKIEKIE vs. KEANINL 

Appeal from Water Commissioner. 

Hearing, September 1, 1891. Decision, September 28, 1891. 

JuDD, C.J*., Bickerton and Dole, JJ. McCully, J., Absent. 

A flame, diverting water from certain springs on to land not entitled to 
water, was put up by defendant. The springs were m defendant's 
land, and after supplying defendant's kalo patches therein, the water 
was accustomed to flow down into a natural water course, whence 
plaiutiif had acquired an easement to use the water for his kalo 
patches below. It was claimed by defendant that he had other land 
below, which was entitled equally with the plaintiff to water from the 
overflow of the springs, and that he only diverted by this flume the 
water which he was entitled to use below. 

Held, the flume should be removed. It was an unwarranted interferenoe 
with the plaintiff's method of enjoyment of his easement in the water 
from the springs, and injurious to him and others. 

Opinion of the Court, by Judd, C.J. 

Certain springs called ** Kaaikahi," in Pauoa valley, originate 
in land of defendant. The water comes up in various parts of 
several kalo patches, which are surrounded with banks, as is usual. 
These kalo patches are on several terraces and the water, 
after supplying them, percolates through the banks in places and 



KAHOOKIEKIE vs. KEANINI. 311 

also runs through them in several small openings into a natural 
water course which runs along the bottom of Pauoa valley, 
There are other springs in the bed of this water course, and the 
accumulated body of water flows along and is taken out through 
small auwais to the various kalo patches through the valley 
which have acquired a right by prescription to use the water. 
The plaintiff's kalo patches are among these. 

Other large tracts of kalo land are supplied with water from 
an auwai which starts at some distance above the Kaaikahi 
springs. The people whose lands have acquired rights to be 
supplied with water from the Kaaikahi springs have submitted 
to a division of their use of the water by duration of time, said 
to have been made many years ago by the Minister of Interior, 
the validity of which is not questioned in this case. 

The rainfall in the present year has been exceptionally 
scanty, and, as a consequence, springs are lowered, streams have 
become reduced to almost nothing, and kalo growing has 
suffered. We saw many kalo patches in this valley where the 
crop was perishing. 

Recently there has been put up by defendant, or by his 
Chinse lessee by defendant's orders, it is immaterial which, a 
flume, one end of which was placed in an outlet of the Kaaikahi 
kalo patches, which serve as reservoirs for the spring water 
which boils up in them. The other end of the flume extends 
over and across the natural water-course to dry or kula land on 
the opposite bank of the water-course from the Kaaikahi springs. 
Some of the water, therefore, which formerly ran from the 
springs into the natural water-course to supply kalo land below 
was led across this water-course, and was used to irrigate kula 
land, which it is not pretended is entitled to water. It is claimed 
by defendant, and it is not denied, that defendant has other kalo 
land below equally entitled with the plaintiff to water from the 
Kaaikahi springs, and it is contended that it was some share of 
this water right that defendant had run over on to the kula 
land in the flume. 

It was not shown, hpwever, that the defendant had entirely 
discontinued the use of water on any definite portion of his kalo 



312 SEPTEMBER. 1891. 

land below which was entitled to water, and had substituted 
his kula land on the opposite bank as the recipient of this water. 

Without deciding the question whether a water right by pre- 
scription to be used upon certain land could be diverted to and 
used upon another piece of land, we are of opinion that to do 
this, as defendant has done, is a manifest injury to the plaintiff. 

The evidence shows that in order to assure a flow of water 
in the flume the spring patches had to l^e dammed up in order 
that they might serve as reservoirs. Now, during the time that 
the outlets of these patches were stopped, the surplus water from 
the springs could not flow down into the natural water-course 
and on down to the lower lands. It is clear to us from a per. 
sonal view of the locu8 in quo that the water would not flow in 
any volume into the flume unless the spring patches were 
dammed up. And even if the defendant took water in the 
flume to the kula land only during the hours that he was en- 
titled to water for his lower lands, it is not clear that it would 
not be an injury to those whose time for the use of water fol- 
lowed his — for the disuse of the lower auwais during his hours 
would tend to make them dry and absorb more water when it 
was again turned into them. The defendant, as the owner of 
the Kaaikahi spring patches, is entitled to the water originating 
in them sufficient for their needs, but the right to the surplus 
water has been acquired by the lower land owners and cannot 
be diverted by means of this flume without* injury to them. We 
therefore affirm the judgment of the Commissioner ordering the 
removal of the flume. 

It was shown before the Commissioner that the defendant was 
accustomed to dam the water up in his kalo patches until it had 
accumulated to a considerable height. He would then let it flow 
off in an increased volume to the lands in which he was interested, 
which were entitled to water. During the time the patches were 
thus filling, the parties whose time for irrigation this was would 
be deprived of water. These reservoir patches then becoming 
emptied, the parties next entitled to water in order of time would 
get no flow of water until it had accumulated sufiiciently to run 
again through the outlets. The Commissioner, in his judgment. 



AFONG V8, CHUN HOY. 313 

has provided against a repetition of this manifest injustice by 
placing stones in the beds of various outlets of the reservoir 
patches, above which the water cannot rise. Counsel for defend- 
ant admits that his client's act in thus closing up the reservoir 
patches is wrong, and he does not question the decision of the 
Commissioner in ordering that this practice shall cease. We 
therefore aflSrm this part of the judgment also. 

Costs to be paid by defendant. 

J. A, Magooriy (F. M, Hatch with him) for plaintiff. 

W. R, Castle, for defendant. 



C. AFONG V8, CHUN HOY and J. A. HOPPER. . 
Appeal from Bickerton, J. 
Hearing, September 1, 1891. 'Decision, November 27, 1891. 

JuDD, C.J., Bickerton and Dole, JJ. McCully, J., Absent. 

Money of a principal in a bank was drawn by an agent without authority, 
and miuapplied to the payment of a debt of the agent. Held, that al- 
though by a suit at law the principal might recover it of the payee, it 
solvent, equity has jurisdiction in order to declare the payee trustee 
of the said principal, in respect to the money, and of the mortgage 
given by the agent. The principal would be entitled to security upon 
the property purchased with his money. 

Opinion of the Court, by Bickerton, J. 

The bill of complaint shows that in the month of October, 
1890, the complainant left this kingdom for China, having ap- 
pointed said Chun Hoy as his attorney under a written power 
of attorney, duly recorded in the Registry of Deeds in Hono- 
lulu. That said Chun Hoy, on the 17th day of October, 1890, 
was lessee and proprietor of a certain leasehold and rice planta- 
tion on Kauai, and had by two mortgages dated 12th November, 
1889, and 9th of September, 1890, mortgaged to James A. Hop- 
per, defendant, the said leasehold and rice plantation, also the 



^ I 



314 SEPTEMBER, 1891. 

crops of rice to be raised thereon, securing to said Hopper for 
Bale on commissions by the former mortgage ten crops of rice, 
and by the latter not less than thirteen crops. The considera- 
tion mentioned in said mortgages was for advances made for 
purchase of said rice plantation, and for further loans and ad- 
vances ; the last mortgage recites that Chun Hoy was then in- 
debted to said Hopper in the sum of about $30,000 ; that the 
said Hopper now holds the said securities, and was entitled to 
no other securities therefor. That on the first day of Novem- 
ber, 1890, said Chun Hoy delivered to said Hopper, and said 
Hopper received, a check of the same date on the bank of Bishop 
& Company, in the sum of $29,600.79 payable to said Hopper, 
and signed in the name of said complainant by the said Chun 
Hoy, which said check was presented by said Hopper at said 
bank, and said Hopper received from said bank of the funds of 
this complainant the sum of $29,600.79, which said sum was by 
the said Hopper applied to the credit of said Chun Hoy in pay- 
ment to that extent of moneys advanced to him and secured 
under said mortgages. That complainant, about the time of bis 
leaving the kingdom, caused to be published the following no- 
tice: 

Notice. 

Notice is hereby given that during my absence from this 
Kingdom Chun Hoy will act for me under full power of attor- 
ney. C. Aponq. 

Dated, Honolulu, October 16, 1890. 

That at the time of the receipt by the said James A. Hopper 
of said check and of the money paid thereon as aforesaid, and 
placing the same to the credit of said Chun Hoy as aforesaid, 
he well knew that said money so paid to him on said check was 
not the money of the said Chun Hoy, but was the money of the 
complainant, and that such payment of the money of the com- 
plainant by said Chun Hoy for the private account of said Chun 
Hoy was, unless specially authorized by the complainant, a 
misapplication of the funds of the complainant, which had been 
deposited by the complainant in said bank, and with which the 



AFONG V8. CHUN HOY. 315 

said Chun Hoy was entrusted by the complainant for no other 
purposes than those mentioned in said power of attorney. 

And the complainant further says that said use of his money, 
either by said Chun Hoy or by said James A. Hopper, was and 
is wholly unauthorized by him and was and is a misapplication 
of funds which the complainant had on leaving said Kingdom 
as aforesaid entrusted to said Chun Hoy for no other purposes 
than those above mentioned and named in said power of attor- 
ney. 

That of said money received by said Hopper there has been 
refunded to complainant the sum of $7,921.81; that there still 
remains unpaid the balance of $21,678.98 with interest from 
November 1, 1890. That complainant has revoked said power 
of attorney to Chun Hoy, and appointed as his attorney Samuel 
M. Damon. That said Chun Hoy has no money of his own to 
pay said balance and no securities or property except those 
which have been made over by him to and are now held as 
aforesaid by said Hopper under his mortgages. That there is 
about 850 tons of rice which will be harvested from said rice 
plantation within the next four or five months, which will more 
than suffice for the payment thereout to complainant of said 
balance and interest, and that said Hopper has been requested 
by complainant to make over a sufficient amount thereof to pay 
said balance and interest to complainant, which said Hopper 
declines to do, although he well knows that out of said proceeds 
the said balance and interest can be paid to complainant, and 
also all moneys now owing to said Hopper by said Chun Hoy, 
and that he, said Hopper, will then be in precisely the same 
position with said Chun Hoy, and in respect of his said securi- 
ties, as he would have been in if the said trust moneys had not 
been wrongfully applied. And complainant submits that said 
Hopper is chargeable with notice of said misapplication of said 
trust funds by said Chun Hoy, and ought to be declared a trus- 
tee thereof, and also of said mortgage securities, to the extent of 
said balance and interest, to the use of complainant. And further 
ought to be decreed to pay said balance and interest to said com- 
plainant out of the proceeds of said rice crops next to be re. 



316 SEPTEMBER, 1891. 

ceived by him under and by virtue of said mortgages, and that 
both defendants ought to be restrained and enjoined from dis- 
posing of any of said crops, or the proceeds thereof, until pay- 
ment to said complainant of said balance and interest. And 
the complainant prays accordingly. 

The defendants demur to the bill of complaint, and for cause 
of demurrer show that the complainant has not in said bill 
made or stated such cause as doth or ought to entitle him to 
an}' such relief as is thereby sought and prayed for from or 
against the defendants. That the point of law intended to be 
raised by the demurrer is whether or not complainant has a 
complete and adequate remedy at law. 

The plaintiff by his counsel consents that a pro forma decree 
be entered sustaining the defendants' demurrer, subject to plain- 
tiff's right of appeal. Decree made accordingly, from which 
decree the complainant appeals to the Supreme Court in banco. 
And the case comes here on said appeal. 

This is purely a question of jurisdiction; the question of no- 
tice is a matter for proof when the cause comes on for hearing 
on its merits; so also tlie question of declaring a trust is a mat- 
ter to be decided on the proofs produced at the hearing of the 
case on its merits. The question for us is, does the bill on the 
whole present matters for the consideration of a court of equity, 
or has the complainant a complete and adequate remedy at 
law? The bill does not only seek to recover the money in ques- 
tion: if it did, the plaintiff's remedy would clearly be an action 
at law for money had and received: but it goes further and 
prays that defendant Hopper be declared a trustee of said 
money and the securities to the use of complainant. Could this 
relief be obtained bv an action at law? Certainlv not, it could 
only be granted by a court of equity. A judgment for the bal- 
ance and interest, as claimed, would not in itself be a complete 
and adequate remedy if the averments in the bill are true. We 
are not to presume that the defendants are able to satisfy such 
a judgment if obtained; a court of equity will enforce its de- 
crees. If Chun Hoy had used complainant's money, having 
control of it as he did, to purchase said rice plantation, there 






COLBURN V8, WHITE. 317 

can be no question complainant would have been entitled to 
security on the property. If it is true that the money paid by 
Chun Hoy to Hopper was to reimburse Hopper for money ad- 
vanced by him for the purchase of said rice plantation, why 
should not complainant be entitled to security on the property 
purchased with his money? 

In Aktina vs. Kauakiknua, 3 Hawn., 732, the court held; "If 
there is any doubt whether plaintiff would have an adequate 
remedy at law," equity will take jurisdiction. 

We are of opinion that the bill, as a whole, presents matters 
for the jurisdiction of a court in equity, and can be completely 
remedied in no other court. We therefore overrule the demur- 
rer. Defendants to answer. 

A. S, Hartwell and Thurston & Frear, for plaintiff. 

F. M. Hatch and W. R. Castle^ for defendants. 



J. F. COLBURN vs, J. C. WHITE. 

Mandamus. 
Hearing, October 20, 1891. Decision, October 24, 1891. 

judd, c.j., bickerton and dole, jj. mccully, j., absent. 

The exercise of a dlBcretionary power by an officer will not be interfered 
with under an application for a writ of mandamuB. 

Official duties, arising from oontraot relations solely, will not be enforced 
by mandamus. 

Opinion of the Court, by Dole, J. 

This is an application for a writ of mandamus addressed to 
John C. White, Superintendent of Water Works, directing him 
to turn on the water from the Government pipes to the premises 
of the petitioner, or show cause why he should not do so. 

It is alleged by the petitioner that he has enjoyed a Govern- 
ment water privilege on his premises in Honolulu for many 



318 OCTOBER, 1891. 

yeare and has paid for the same for the present half year, and 
that on October 13th the respondent, contrary to his duties as such 
Superintendent of Water Works and to the rights of petitioner, 
shut off the water from the said premises and refuses to turn it 
on again, to the injury of the petitioner. 

The respondent admits cutting off the petitioner's water, and 
claims that it was his duty to do so; he exhibits the regulations of 
the Water Works, promulgated by the Minister of Interior, and 
alleges drouth . and scarcity of water, and notice to the public 
limiting irrigating privileges to two hours a day, i.e., from 7 to 
8 o'clock A.M. and 5 to 6 o'clock p.m., and that petitioner regard- 
less of the said notice and regulations has, from time to time 
during the last three months, used water for irrigation at times 
not allowed by the said regulations and notice, and has wasted 
large quantities of water by allowing leaking pipes to remain 
unrepaired. 

A considerable mass of evidence was produced in support of 
the allegations on both sides, and rebutting the allegations that 
the petitioner had disobeyed the regulations. The regulations 
of the Water Works contain the following Articles: *' 6. Con- 
sumers shall prevent all unnecessary waste of water, and shall 
make no concealment of the purposes for which it is used." 
** 11. All service pipes shall be kept clear and in good repair 
by the holder of the privilege at his own expense." " 16. Irri- 
gation shall be confined to the hours that shall be published 
from time to time by the Superintendent of Water Works." 
** 17. Violation of any of these rules and regulations shall 
terminate the privilege, and the water shall be cut off and shall 
not be turned on again until the payment of all costs and 
expenses." 

If discretion is vested in an officer in regard to a certain act, 
the Court, upon an application for a writ of mandamus to com- 
pel him to do or undo the act, cannot consider the question of 
official duty. 

In the case before us, if the shutting off of the water privilege 
for a breach of the regulations was a matter of discretion with 
the Superintendent, this Court, on this application, may not en- 



COLBURN V9. WHITE. 819 

deavor to ascertain whether or not he acted with faultless judg- 
ment, if it appears that he acted in good faith and in the exer- 
cise of his discretion. 

It appears from the evidence that the Superintendent is em- 
powered by the regulations to cut oif the water from the prem- 
ises of any holder of a privilege in case of a violation of any of 
the regulations. (Art. 17.) To ascertain whether or not there 
has been a violation requires an examination into the circum- 
stances, often a hearing of testimony and a weighing of the evi- 
dence and a conclusion; it is an act of a judicial naturt and is 
therefore a discretionary matter. If the respondent has exer- 
cised this discretion, we may not interfere through a writ of man- 
damus. 

There is evidence that the petitioner had committed breaches 
of the regulations, which, though denied by him and rebutted 
by his evidence, is suflScient to support the position that, rightly 
or wrongly, the respondent, as Superintendent of the Water 
Works, exercised his discretion in the matter. State vs. Board 
Fire Corns., 26 Ohio, 31-32; Bradley vs. Thurston^ 7 Hawn., 523. 

There is another standpoint from which this issue may be 
considered on the evidence, i.e., the obligation of the respondent 
to furnish the petitioner with water, arising from the contract 
between the parties. If this obligation comes solely from the 
contract, it may not be enforced by mandamus. ** Duties im- 
posed upon a corporation, not by virtue of express law or by the 
conditions of its charter, but arising out of contract relations, 
will not be enforced by mandamus, since the use of the writ is 
limited to the enforcement of obligations imposed by law." 
State vs. Paterson, 16 Ohio, 512. " Purely contract obligations 
involving no trust cannot be enforced by mandamus." State 
V8. S. & M. T. Co., 16 Ohio, 318-9. This view of the case is in 
the nature of an alternative one, as a contract obligation is not 
imposed by law and may not be a matter of discretion. 

The application is dismissed. 

A. P. Peterson, for petitioner. 

F. M. Hatch, for respondent. 



320 DECEMBER, 1891. 



R. W. AYLETT and KUHIAU vs. KEAWEAMAHI. 

Exceptions. 
Hearing, December 21, 1891. Decision, February 27, 1892. 

JUDD, C.J., McCULLY, BiCKERTON, DoLE, JJ. 

1. Proper practice indicated in regard to transcripts of notes of evidence 

by the short-hand reporter. 

2. A deed conveying *^ two enclosed lots '' (elna pa) ^ at Eaakopoa,^ held, 

not to be a patent ambiguity, it not appearing on the face of the deed 
that the grantor had other lots in Kaakopua. 

3. Parol testimony admissible to identify and locate the lots. 

4. B. Eeelikolani made a deed of gift of two lots at Kaakopua to Ealaiku- 

ewa in 1871, which deed was recorded. B. Keelikolani made a deed of 
the same land to Eeaweamahi in 1878. Held, the silence of Ealaiku- 
ewa. who was present when the deed was made, did not estop her or 
her privies from asserting a claim against it; first, because, under 
peculiar circumstances in the opinion set forth, she might not be 
aware of the state of her own title; and, secondly, because the record 
of the deed was sufficient to put Eeaweamahi on his inquiry as to the 
true state of the title. 

5. At the same time of the deed of R E. to Kalaikuewa, her kahu, she, 
R Eeelikolani, gave to W. P. L. Ealahoolewa, her adopted son, a 
deed of all the Ili of Eaakopua, which was recorded before that of Ea- 
laikuewa. Held, that the two deeds were parts of the same transac- 
tion, and the deed of the Hi of land is subject to that of a portion of 
thellL 

6. The deed from R E. to Ealaikuewa contained a covenant of warranty. 

Held, that a deed from the successors to the title of R E. through 
Ealahoolewa to the defendant is inadmissible as against the privies 
of Ealaikuewa, for it (the covenant of warranty) should enure to her 
and their benefit. 

7. Tenants in oonmion may join in action of ejectment and recover mesne 

profits. 

Opinion op the Court, by Judd, C.J. 

The plaintiff, Kuhiau, having deceased testate on the eighth 
day of June, 1891, since the trial of this case before a jury, the 



AYLETT V8. KEAWEAMAHI. 321 

following persons are substituted therefor with leave to proceed 
with the suit, viz., Christian Titcomb, by Lorrin A. Thurston 
and Angeline Kuhiau, his guardians, and Lawrence Kekei and 
Kaomea, devisees of said Kuhiau. 

At the hearing on the bill of exceptions, the attorneys for the 
plaintiffs moved to dismiss it on the ground that it did not, ac- 
cording to Rule 8, .embody the testimony. We find that the 
bill of exceptions sets out " that the witnesses respectively testi- 
fied as per the notes of the official stenographer, a transcript 
whereof is hereto annexed marked Exhibit K, and made a part 
hereof." 

The roll made up by the Court stenographer of his notes of 
the evidence, written upon a typewriter, was not annexed to the 
bill of exceptions. It is bulky, consisting of 126 pages of fools- 
cap, and could not conveniently be " annexed " to the bill. It 
was not, in fact, marked Exhibit K. But it was made up and 
marked with the name of the case, and was lying with other 
rolls containing evidence adjacent to where the papers were 
filed. 

As this Court has not had the assistance of a short^hand re- 
porter very long, and the question is therefore a new one to us, 
we hold that the rule has been sufficiently complied with in 
this case. We think the proper practice should be this: The 
stenographer should sign the transcript of evidence, and the 
clerk should label it with the name of the case, and it should 
be so marked as an exhibit to the bill of exceptions as to be 
readily identified as a part of it and be filed. 

A short account of the case will assist us in disposing of the 
exceptions raised by the bill. 

1. January 30th, 1871, Ruth Keelikolani sold to Kalaikuewa 
(w.) the two lots of land at Kaakopua, Honolulu. 

2. By deed of the same date she, R. Keelikolani, conveyed to 
W. P. Leleiohoku Kalahoolewa the entire Hi of Kaakopua. 

3. August 24th, 1878, Ruth Keelikolani conveyed to Kahau- 

mia and Keaweamahi, husband and wife, for life, the same land 

that she had previously oonveyed to Kalaikuewa. Kahaumia 
21 



322 DECEMBER, 1891. 

is dead, the title in the land durviving to her husband, Keawea- 
mahi, the defendant in this case. 

4. November 11th, 1882, Kalaikuewa died, leaving sundry 
heirs. 

6. These heirs sold their interest in the estate of Kalaikuewa 
— three-quarters to R. Wm. Aylett and one-quarter to Kuhiau. 
Aylett and Kuhiau, being now tenants in common of all prop- 
erty owned by the estate of Kalaikuewa, are the plaintiffs in 
this case. 

6. October 13th, 1883, the heirs of W. P. L. Kalahoolewa by 
deed of compromise conveyed to B. P. Bishop, among other 
lands, the said Hi of Kaakopua, conveyed to said Kalahoolewa 
by Ruth Keelikolani, the deed reciting that said B. P. Bishop 
was the residuary legatee of said Keelikolani, and that the deed 
of compromise was for the purpose of settling all disputes be 
tween the heirs of said Kalahoolewa and the estate of said Kee- 
likolani in and concerning the meaning of the said deed of Jan- 
uary 30th, 1871*, from Keelikolani to Kalahoolewa, and other- 
wise. 

7. April 10th, 1891, the trustees under the will of B. P. Bis- 
hop made a deed to Keaweamahi, defendant in this case, of the 
premises in dispute, claiming title to convey by reason of and 
through the said deed from the heirs of Kalahoolewa to B. P. 
Bishop. 

The first two exceptions are as follows: 

1. Defendant objected to the introduction in evidence of the 
deed from Ruth Keelikolani to Kalaikuewa (Exhibit A) on the 
ground that the first clause in the granting portion, viz., "1. 
Elua pa ma Kaakopua, Honolulu," under which plaintiffs 
claim, is void for uncertainty in description, and is not suffi- 
cient to admit parol evidence in support of it. 

2. Defendant objected to the admission of parol evidence off- 
ered by plaintiffs for the purpose of identifying and locating 
the " elua pa " named in the above deed. 

This point is also made the subject of a prayer for instruc- 
tion to the jury, as follows: 
1. That the deed from Keelikolani to Kalaikuewa^ under 



AYLETT vs. KEAWEAMAHI. 323 

which plaintiffs claim, is insufficient to convey any title to the 
land in question, by reason of vagueness of description and am- 
biguity upon the face of said deed. 

The other exceptions are to the refusal of the Court to grant 
the following prayers for instruction to the jury, as follows: 

2. That Kalaikuewa and her privies are estopped by her con- 
duct, in standing by and allowing the deed to the defendant to 
be made, from now setting up title against the defendant. 

3. That the deed from Keelikolani to W. P: L. Kalahoolewa, 
being recorded prior to the deed to Kalaikuewa, conveys the 
property in question,* and that plaintiffs cannot recover. 

4. That plaintiffs cannot recover any damages herein, because 
the right, if any, to damages is several, and the plaintiffs cannot 
recover in a joint action. 

5. That the plaintiffs cannot maintain a joint action in eject- 
ment, their rights being several. 

6. That the plaintiffs cannot recover damages for occupation 
prior to the dates of their deeds. 

7. If the jury believe that Kalaikuewa was present when 
Keelikolani made the agreement of sale to defendant, and that 
she allowed the sale to be carried out without objection and 
without notice to defendant of her claim of title, she and the 
plaintiffs who claim under her are estopped to set up title 
against the defendant. 

8. If the jury believe from the evidence that at the date of 
the deed from Keelikolani, under which the plaintiffs claim, 
there were several house lots in the land of Kaakopua, Hono- 
lulu, besides the two mentioned therein, then the recording of 
said deed constituted no notice to subsequent purchasers of the 
lots thereby conveyed. 

9. In order to give notice of title by registration of convey- 
ances, the premises conveyed must be described with sufficient 
detail and precision to permit their being identified by one fa- 
miliar with the locality in which the premises are situated. 
The deed from Keelikolani to Kalaikuewa, failing to thus de- 
scribe the land in question, conveyed no notice by its record to 
subsequent purchasers of the premises in dispute. 



324 DECEMBER, 1891. 

It is claimed on the part of the defendant that there is a pat- 
ent ambiguity in the deed; that it is therefore void for uncer- 
tainty. The plaintiffs claim that the ambiguity is latent and 
capable of being explained by parol evidence. 

The defendant contends that the description of the premises 
must be sufficiently definite to enable the land to be identified. 
The plaintiffs contend that there is nothing on the face of the 
deed to show that the grantor owned more than two lots in 
Kaakopua — it is only by extrinsic evidence that it appears that 
she had other lots in Kaakopua, and that therefore the ambigu- 
ity is latent. Judge Caton, in Dougherty V8. Purdy, 18 111., 208, 
discusses this matter as follows: In the case before him the land 
was described in the deed as an undivided half of the N. W. 
quarter of section 1, township 1 North, in range 1 West, in the 
State of Illinois. There was more than one lot of land to which 
this description would apply. The Judge says: "This is a la- 
tent ambiguity which is shown only to exist by the presenta- 
tion of evidence outside the deed. It is like the familiar in- 
stances put on the books, when the deed purports to convey 
black acre, and it is shown that there are two tracts of land 
bearing that name. When an ambiguity is duly made to ap- 
pear by the introduction of proof outside the deed, it is a latent 
ambiguity and may be explained in the same way that it is 
shown. The ambiguity may be removed by showing that the 
grantor owned one of them, and the presumption is that he in- 
tended to convey the one he owned. If it is shown that the 
grantor owned both, it is still competent to show by parol proof 
which tract was meant to be conveyed, and thus explain by 
parol the ambiguity which was shown to exist by parol." 

So, in the case before us, Keelikolani undertook to convey 
"two enclosed lots of land in Kaakopua." If she owned no 
other lots in Kaakopua there would be no uncertainty in the 
description, and on proof that she owned other lots in the land 
of Kaakopua, it was competent to show which ones were in- 
tended to be conveyed. 

The following cases confirm this view: Clark v$. Powers, 45 
111., 284, where there were three sections of land to which the 



AYLETT VB. KEAWEAMAHI. 325 

description would apply. Coleman vs. Manhattan Beach Co., 94 
N. Y., 229. Here the description was "Pelican Beach, near Bar- 
ren Island, in the town of Flatlauds." The Court say, "When 
words of general description are used, oral evidence is admissi- 
ble to ascertain the particular subject matter to which they ap- 
ply, without infringing upon the rule which prohibits parol 
evidence to add to or contradict the language of written instru- 
ments. The object of oral evidence in such cases is to ascertain 
the intention of the parties as expressed in the writing, and not 
to make the deed operate upon land not embraced in the de- 
scriptive words." 

In McNitt V8. Turner, 16 Wall., 364, the Supreme Court of 
the United States say, where the description of the land would 
be equally applicable to another tract in another county, 
"proof of the ownership by Spott? of the tract sold was admis- 
sible to locate the description upon the proper premises and to 
remove the ambiguity which was found to exist." 

Mr. Justice Miller, in Deery vs. Cray, 10 Wall., 269, said, 
"Now unless the deed is so fatally defective as that no subse- 
quent competent evidence could make it good in point of the 
description, the Court did not exceed its just discretion in per- 
mitting it to be read." "In other words, if the uncertainty was 
a patent ambiguity, an uncertainty which inhered in the es- 
sence of the description, rendering it incapable of being applied 
to the subject matter, then the deed was void absolutely and 
should not have been admitted." Of this character was the 
land described in Fenwick vs, Floy d^ 8 Leasee "as part of R. 
manor, containing 251 acres, more or less." The manor of R. 
contained 4,000 acres, and nothing could be shown by which 
the 251 acres could be located or identified, and the description 
was a patent ambiguity. 1 Harris & Oill, 172. 

So in I/amhard vs. Aldrich, 8 N. H., 81, the power of attorney 
authorized the sale by a bank of two pieces of land in Cole- 
brook, N. H., belonging to the bank, one to Lumbard and one 
to Hilliard. The Court held the sale void, as there was nothing 
to show which piece was to be conveyed to Lumbard and 
which to Hilliard. 



326 DECEMBER, 1891. 

In People vs. Klumpke, 41 Cal., 278, the Court held that a 
deed was void for uncertainty, because the description of the 
premises would fit equally well four different parcels of land. 
No precedents are cited in the opinion, and it does not seem to 
be sustained by much authority. See Kaleleonalani V8, Trus- 
tees Lunalilo, 4 Hawn., 82; American Bible Society vs'. Pratt, 9 
Allen, 109. 

The cases are numerous and not easy to reconcile. But we 
think the trial court was right in admitting the deed and evi- 
dence to identify and locate the lots of land intended to be con- 
veyed. We overrule this exception. 

The Court refused to charge the jury that Kalaikuewa and 
her privies are estopped to now set up her deed against the de- 
fendant, by reason of her silence at the time the subsequent 
deed was made by Keelikolani to defendant. This was right, 
for we do not think an estoppel was made out. 

An ingredient necessary to an estoppel is that the silence 
must be- with a knowledge of the person's own rights, and it 
fails in this case when we consider the relation of Kalaikuewa 
to her chief, Keelikolani. The conveyance to her, though in 
the form of a deed for a valuable consideration, ($1.00) was un- 
doubtedly a gift or a settlement upon her favorite *'kahu," or 
companion servant, and it is quite likely that this old lady 
may have supposed that what the chief gave her she could take 
away again. Understanding, as the Court does, the circum- 
stances, we require that the facts should show silence with, in- 
tention to deceive, such as would amount to constructive fraud. 
Moreover, the deed to Kalaikuewa was on record when the deed 
to defendant was made, and defendant cannot now say that he 
was ignorant of the true state of the title. If, as claimed by 
the defendant, the record of the deed of "two lots in Kaakopua" 
was too indefinite to apprise defendant that the land he waB 
negotiating for had already been conveyed, it certainly should 
have put him on inquiry, and he cannot say that he was desti- 
tute of all means of acquiring knowledge of the true state of 
the title. This is sufficient to dispose of this point. 

The Court was asked to charge the jury that the deed of 111 



AYLETT VB, KEAWEAMAHI. . 327 

of Kaakopua to Kalahoolewa, being recorded prior to that of 
Kalaikuewa, conveys the property in question and that plaint- 
iffs cannot recover. This was properly refused, for an inspec- 
tion of the two deeds shows that they were drafted by the same 
person, signed at the same time, witnessed by the same persons, 
acknowledged at the same time before the same officer, and, as 
both are evidently settlements upon two of the persons who the 
grantor wished to provide for, one her adopted son and 
one her kahu and friend, they are to be regarded as one tran- 
saction, and therefore the deed of the Hi to W. P. Leleiohoku 
Kalahoolewa should be regarded as subject to the deed of a por- 
tion of the Hi to Kalaikuewa. 

Another exception is to the ruling of the Court in holding a 
deed from Chas. R. Bishop and others to defendant, of the prem- 
ises in question, inadmissible. This deed is dated the 10th 
April, 1891, and is from the trustees under the will of Mrs. B. 
P. Bishop, who have succeeded to the title of W. P. L. Kala- 
hoolewa in the Hi of Kaakopua. The deed of Keelikolani to 
Kalaikuewa contains a clause that may be translated thus: "I 
hereby bind myself, my heirs, executors and administrators to 
carry out (hooko) the declarations above made" ( i keia mau 
olelo maluna ) that is, the conveyance of the land. It is in ef- 
fect a warranty, and the title afterwards acquired by those suc- 
ceeding to the title in Kaakopua will inure to the benefit of the 
grantee Kalaikuewa and those claiming under her. Rawle, Gov. 
for Title. 5th ed., sec. 255 and notes; 2 Hermann on Estoppel, 
sees. 642, 646, 647; Van Rensselaer vs. Kearney, 11 Howard, 
297. 

The defendant was not a purchaser without notice, for he 
took this conveyance while the litigation in regard to this land 
was in progress, it being in fact dated April 10th, 1891, the first 
day of the trial. Having held that the prior record of the deed 
of Keelikolani to Kalahoolewa did not give it priority over her 
deed to Kalaikuewa, it is difficult to see how the deed of the 
successors to the title of Keelikolani through Kalahoolewa could 
have any effect as against Kalaikuewa. 

The last point to be considered is the refusal of the Court to 



328 DECEMBER, 1891. 

charge the jury that the plaintiffs cannot maintain a joint ac- 
tion in ejectment or recover any damages herein, because their 
rights are several, they being tenants in common. 

By the rules of common law they could not join in ejectment 
because the interest of each is separate and distinct, and as the 
subject of the action is the whole estate, it cannot be said that 
either party plaintiff is interested in the whole estate. But, 
says Freeman, in his work on Co-tenancy and Partition, sec. 
341, "the rules of the common law in regard to tenants in com- 
mon, suing for possession of the lands of the co-tenancy, have 
been so modified in most of the States of the American Union 
as to permit the tenants in common to sue jointly whenever 
they choose so to do. This modification has generally resulted 
from statutory enactments. This, however, has not been uni- 
versally the case, for there are decisions in which, independent 
of statutory considerations, the right of tenants in common to 
make a joint demise, and the consequent right of their lessor to 
maintain ejectment, have been vigorously sustained." The au- 
thorities cited are; Jackson vs, Bradtj 2 Caines, 173; Nixon V8, 
Potts, 1 Hawks, 470; Hoyle vs. Stow, 2 Devereux, 321; Bar- 
rows^ Lessee vs. Nave, 2 Yerger, 228; Alford vs, Dewin, 1 Nev., 
211, and HiUhouse vs. Mix, 1 Root, (Conn.) 246. Unfortunately, 
none of these cases are accessible to us. But our records will 
show that. the practice of tenants in common suing together in 
ejectment is universal. In fact, up to Nahinai vs. Lai, 3 Hawn., 
317, a tenant in common was liable to nonsuit if he did not 
join all his co-tenants as partie's plaintifi" with himself. By 
that decision, followed by Vn Wong vs. Kam Chu, 5 Hawn., 225, 
and other cases, a tenant in common may recover in ejectment 
according to the extent of his title. In Holelua vs. Kapu, 5 
Hawn., 305, the plaintifis, several of them, had claimed the 
land as tenants in common, and the Court held that one of the 
plaintiffs was estopped by the judgment in their favor to deny 
the title of the other in a subsequent action. 

We think that, to avoid a multiplicity of suits, tenants in 
common should be allowed to sue jointly in ejectment, if they 
wish so to do. A judgment in such an action would be a bar 



AYLETT V8. KEAWEAMAHI. 329 

to a separate action by one of them. We therefore overrule 
this exception, and the verdict must stand. 

TKurston c& Frear and ^. jRosa, for plaintiffs. 

Ashford & Ashford, for defendants. 



Since the above was written, we have received the Oregon 
Reports, Volume 11 of which contains a case confirming our 
opinion on the first and second exceptions. The case is Rich' 
ards V8. Snider, 11 Oregon, 197. It was a suit for specific per- 
formance of a contract to sell land described as "lot 8, sec. 19, 
4 N., 35 E." On demurrer the Court held that "this is clearly 
a case admitting of the identification of the subject matter by proof 
of extrinsic facts." The complaint alleged that the description in 
the agreement meant **lot 8, in section 19, in township 4 North, 
of range 35 East, Willamette meridian," in Umatilla county, 
Oregon, and that "appellant received possession of the premises 
from Snider under said agreement, and continued in possession 
thereof," etc. The Court say, "the facts admissible and effec- 
tual for this purpose which are alleged in the complaint, and 
admitted by the demurrer, seem ample. The possession alone, 
taken under the circumstances alleged, and in view of the stipu- 
lation for possession in the written agreement itself, should be 
held a sufficient identification." 

Purinton vs. N. TIL R. R. Co., 46 111., 297, is to the same ef- 
fect — that the construction put by the parties on their contl'act 
for the sale of land, by the grantee's taking possession with the 
permission of the grantor, removes the objection of uncertainty 
in the description. See also Parkhurst vs. Van Cortland, 14 
Johns., 15. In the case before us there was evidence that Ka- 
laikuewH took and held possession of the two lots at Kaakopua, 
the subject of this action, with the knowledge and approval of 
the grantor, whereby the insufficiency of the deed in regard to 
the description was cured. 

April 23, 1892. 



330 DECEMBER, 1891. 



MOHOLE MOANAULI V8. ROSINA MANAKIT. 

Appeal from Bickerton, J. 

Hearing, December 22, 1891. Decision, January 11, 1892. 

JuDD, C.J., McCuLLY AND BicKRRTON, JJ. Mr. Justicc Dole, 

having been of counsel in the case, did not sit. 

A deed of gift to a woman, who afterwards married the grantor, was signed 
by the grantor and kept by him until his death, withoat mentioning 
it to the grantee. Some time after his death it was passed, with 
other papers, to the attorney of the grantee by D. M., the hnsband of 
one of grantor^s heirs, having been found presumably among grantor's 
papers after his death; 

Held, there was no valid delivery of the deed, and it is inoperative. 

As the deed was inoperative, the Court dismissed a petition by the grantee 
to set aside a decree of partition of the estate, the petition being 
based upon the allegation that the decree was made in ignorance of 
the existence of the deed. 

Opinion of the Court, by Judd, C.J. 

Having given this case on appeal due deliberation, we are of 
opinion that the judgment appealed from should be sustained, 
and we accordingly affirm the same and adopt it as the decision 
of the Court. 

Decision of Bickerton, J., Appealed From. 

The averments in the bill are as follows: 

That plaintiff is the widow of J. Moanauli, who died in the 
year 1883; that said J. Moanauli left him surviving the oratrix, 
his widow, and two daughters, Rosina Manaku residing at Hono- 
lulu, defendant, then the wife of David Manaku, and Kalani- 
kapu, the minor daughter of said oratrix, now deceased. 



MOANAULI V9. MANAKU. 331 

That at the time of the settlement of the accounts of the ad- 
ministrator of said J. Moanauli, to wit, on the 21st day of Sep- 
tember, 1887, a decree of distribution was made by the Hon. A. 
F. Judd, Chief Justice, sitting in Probate, by whigh the dower 
of the oratrix was set apart to her, and a partition made between 
said Rosina and Kalanikapu. That in pursuance of said decree 
said parties executed a deed of partition, said Kalanikapu join- 
ing by her guardian, Cecil Brown. That said partition is in- 
equitable and unjust, in that it was made under a mistake of 
fact. That dower was set apart to the oratrix out of land 
owned by her, though she was at that time, and long after, 
ignorant of the fact of the title being in her. 

That at the time of said decree, and the execution of said deed, 
there existed a certain deed of a portion of the land named in 
said partition deed from J. Moanauli to the oratrix and her 
sister Hanaia, dated January 16, 1871. That the oratrix first 
became aware of the existence of said deed in the month of 
June, 1891. That«aid deed was executed before the marriage 
of complainscnt to said J. Moanauli. That said deed last named 
was executed by said Moanauli and delivered to said David 
Manaku for the oratrix and said Hanaia; that the same was 
in the possession of said David Manaku at the time of partition; 
that, as the oratrix believes, said Rosina Manaku was aware of 
the existence of said deed at the date of said partition, but 
fraudulently concealed the same at said hearing. That said 
David Manaku thereafter, to wit, during the latter part of the 
year 1887, delivered said deed, with other papers relating to 
the title of said land, to Cecil Brown, Esq., who has ever since 
had possession of the same. 

That an action of ejectment is pending between the parties 
hereto in regard to the land named in said deed. The proceed- 
ings in said action have been stayed by an injunction issued 
upon a bill of equity filed by the oratrix praying for a new trial 
on account of said discovery of said deed. 

The answer admits some of the averments in the bill and 
denies others, and sets up inter alia that the document was 
never executed by the said J. Moanauli and was never delivered 



332 DECEMBER, 1891. 

by him to said David Manuku or to any person for the com- 
plainant and said Hanaia or either of them, or any other per- 
son or persons, and has never been stamped or acknowledged or 
recorded, and there were no witnesses to any alleged execution 
thereof, and that there never was any consideration therefor; 
and further — 

" That the complainant entered into possession of the lots on 
Richards street set off to her in said deed of partition, the same 
being then valued at $1500, and enjoyed the same and the use 
and occupation and the rents, issues and profits thereof for a 
considerable time, to wit, upwards of three years after the execu- 
tion of said deed of partition, and afterwards by deed dated 
October 18, 1890, conveyed the same for a valuable consid- 
eration, to wit, the sum of $2000, to one S. C. Allen, a purchaser 
thereof for a valuable consideration, and without notice of said 
document or of anything by reason Whereof said partition might 
be void or voidable. That the complainant enjoyed the use and 
benefit of the proceeds of said lot and has never paid or ten- 
dered the same or any part thereof to the defendaht, nor reim- 
bursed nor offered to reimburse the defendant for any interest 
which she, the defendant, might or ought to have in the said 
lot or the proceeds thereof, nor abandoned any rights under 
the said deed of partition, but on the contrary, long before the 
commencement of this suit, elected to retain the said lot and 
still elects to retain the proceeds thereof. 

'* That since the execution of said deed of partition all of the 
land and parcels of land therein mentioned, excepting the parts 
therein set off to said Kalanikapu, deceased, have been con- 
veyed by proper deeds to purchasers for value and without 
notice of said document, or of any thing or matter by reason 
whereof said partition might be void or voidable, and are now 
held and owned by such purchasers." 

The evidence of the Chief Justice is that when he was in practice 
he drew this document, that it is in his own handwriting, and 
that the signature is the signature of J. Moanauli; he also iden- 
tifies two other deeds, dated the same date as the document in 
question, as being drawn by him (these two deeds were acknowl- 



MOANAULI 8». MANAKU. 333 

edged and recorded ten days after they were executed); but he 
cannot say that either of the three documents were executed in 
his office, but says he handed them to Moanauli. 

This case turns on the question, was there a delivery and ac- 
ceptance of this document in question? The document itself, 
together with the evidence of Robert French and the plaintiff, 
would indicate that Moanauli intended or had it in his mind to 
convey this piece of land to the two women. Did he change his 
mind and simply lay his paper aside? It is strange that the 
other two documents, executed the same date, should have been 
acknowledged and recorded and this one not. There must have 
been a reason for it; if he had delivered it to Manaku for plain- 
tiff and her sister,, as claimed by plaintiff, he certainly would 
have acknowledged it. There is not one iota of evidence that 
there was any such delivery to Manaku, or that Moanauli ever 
spoke of this document to either plaintiff or her sister, or his 
daughter, the defendant, or her husband Manaku; on the con- 
trary, the plaintiff says she never heard or knew of it until Mr. 
Brown told her he had it. The evidence shows that Moanauli 
lived on this land himself and afterwards leased it to Mr. 
Brown, and exercised all acts of ownership over it. How this 
document, together with other deeds of Moanauli's property, 
came into the possession of Manaku, we have no evidence of; he 
is dead and cannot speak. He was, after the alleged delivery, 
appointed administrator of Moanauli's estate, and although the 
safe was examined some time after Moanauli's death and no 
deeds of his lands found in it, yet it is in evidence that Manaku 
had the key of the safe between the time of Moanauli's death 
and the examination of the safe. Mr. Brown says he got this 
document from Manaku with other papers, but cannot remem- 
ber what was said at the time. It may be quite possible that 
this paper may have been with the others and Manaku not know 
it, for if he had wished to conceal it, which certainly it was 
his interest to do, he only had to destroy it, and that would be 
the end of the matter. The evidence is that Manaku was not 
the agent of either plaintiff or Moanauli at any time. It is ab- 
solutely necessary that it be shown that there was a delivery 



334 DECEMBER, 1891. 

and acceptance during the lifetime of the grantor, and that the 
grantor parted with all legal control of the document and the 
land. These propositions are not sustained in any way by the 
evidence in this case; we are left entirely to presumptions. 

In Anderson vs, Anderson, 24 N. E. Rep., 1036, a father execu- 
ted and acknowledged two deeds to his sons, put them in a box 
in which the sons also kept pa})ers, and told a third person that 
he had given the land to the sons, and that the deeds were in 
the box for them. The sons saw the deeds in the box. Held, 
that there was no delivery. 

The plaintiff has since sold the land held by her under the 
partition to a purchaser having no notice of this document; if 
this partition deed were set aside, could the parties be placed in 
their original positions? It would throw into confusion the 
titles of innocent third parties to a great portion of the land 
covered by the partition. Would it be equitable? But this 
need not be considered further, for I cannot find from the evi- 
dence that there ever was a delivery or acceptance of this docu- 
ment, consequently it is not a valid deed. And the partition 
deed must stand. Bill dismissed. 

C, Brown and F, M. Hatch, for plaintiff. 

Thurston & Frear, for defendant. 



HERBLAY m NORRIS. 335 



E. DE HERBLAY vs. S. NORRIS. 

Exceptions. 

Hearing, December 22, 1891. Decision, February 6, 1892. 

JuDD, C.J., McCuLLY, Bickerton, Dole, JJ. 

It is within the discretion of the trial court to re-open the case at the re- 
quest of a party, for the purpose of allowing him to introduce addi- 
tional evidence. 

Such discretion is not subject to review, except in cases of gross abuse. 

Interest may be allowed on a foreign judgment, by way of damages. The 
rate of such interest is not that of the country where the judgment 
was obtained, but that of the country where the judgment is sued 
upon. 

The plaintifiTs complaint asked for interest at six per cent, per annum, 
and will be limited to this rate, though the legal rate in this country 
is greater. 

Opinion of the Court, by Judd, C.J. 

This action was brought upon a judgment obtained by plaint- 
iff against defendant in the city of New York on the 26th Octo- 
ber, 1870; jury was waived, and the case was heard by Mr. 
Justice Dole, who rendered judgment for the amount of the 
New York judgment, and interest from its date at six per cent, 
per annum. The bill of exceptions by defendant is as follows: 

"1. Defendant requests the Court to find as a matter of law 
that no sufficient service was made upon the defendant to sup- 
port the judgment sued upon. 

^'2. Defendant requests the Court to find that no interest can 
be allowed upon the judgment, because it has not been proved 
that the laws of the State of New York allow interest to be 
charged upon a judgment, nor what rate of interest, if any, is 
there allowed. 



336 DECEMBER, 1891. 

"After close of the evidence and argument of counsel, plaint- 
iff's counsel offered a witness to prove the laws of the State of 
New York, and the evidence was received. Defendant excepted 
to the re-opening of the case and to the introduction of new evi- 
dence upon the laws of New York in regard to interest, and the 
exception was allowed. 

"The defendant now excepts to the failure of the Presiding 
Justice to find as requested, and to his action in receiving fur- 
ther testimony after the close of the case." 

The first point made by the exception, that sufficient service 
was not made upon the defendant in the original case, was not 
pressed at the argument, and we think it was rightly held by 
the Trial Justice that the exemplified . copy of the judgment 
showed that service had been made on the defendant, and a 
judgment based on such service is prima facie good, and the 
burden is on the defendant to show that it was irregular. 

The declaration averred that by the Statutes of the State of 
New York there is now due on the judgment interest at the 
rate of six per cent, per annum. The plaintiff introduced no 
evidence as to the law of New York on interest on judgments, 
or the rate of interest. At the argument defendant asked the 
Court to find that no interest could be allowed because no such 
proof had been offered. 

After the close of the argument, the plaintiff's counsel asked 
permission to put in such evidence, which was allowed by the 
Court against the objection of the defendant. 

We find the authorities unanimous that it is within the dis- 
cretion of the Court to reopen a case at the request of a party, 
for the purpose of allowing him to introduce additional evi- 
dence. 

In Commonwealth V8, RickeUon, 5 Met., 412, it was held that 
when a jury, after a cause was committed to them and they 
have gone out, return and make an inquiry of the court as to 
a fact, it is within the discretionary power of the Court to admit 
testimony respecting the matter of such inquiry. 

In Hathaway vs. Evansj 108 Mass., 267, after both parties had 
closed, the defendant stated that he had just learned of a cer- 



HERBLAY m, NORRIS. 337 

tain plan relating to the boundaries in dispute which was in 
plaintiffs' possession, and called upon them to produce it, and 
upon its production offered it in evidence, but the plaintiff ob- 
jected to its admission at this stage and the Judge excluded it. 
The Appellate Court said, "the admission or rejection of the 
plan at the time when it was offered was a matter wholly within 
the discretion of the Presiding Judge, and is not subject to the 
revision of this Court.'* In Commonwealth V8. Blair, 126 Mass., 
42, it was held that admission of evidence after defendant had 
closed his case was a matter of judicial discretion and not a 
subject of exception. 

In Williams vs. Hays, 20 N. Y., 60, the Court held that "the 
receiving of further proof after the case was closed was not then 
a matter of strict legal right on the part of the party offering it; 
its admission rested primarily in the discretion of the referee. 
This Court cannot review the exercise of the discretion of the 
original tribunal." So also Caldwell vs. N. /. Steamboat Co., 
47 N. Y., 296. Owen vs. O'Reilly, 20 Mo., 603, goes further 
than is necessary in this case. The Court there says, "it was 
not a proper exercise of judicial discretion to refuse the plaint- 
iff in this case his motion for leave to introduce this testimony. 
It was clearly an omission, a mere oversight, and the Court 
ought at once to have suffered him to correct it." The cause 
was remanded. Breedlove vs. Bundy, 96 Ind., 319, lays down 
the rule that it is in the discretion of the Court, for the further- 
ance of justice, to permit the introduction of omitted evidence 
after the close of the argument. 

In the case before us, the Trial Justice in his discretion ad- 
mitted the evidence, and we find no abuse of this discretion. 
But this point loses its significance when we consider what the 
true rule for the rate of interest in such a case is. "In suits 
upon judgments, interest is allowed, not as a sum due by con- 
tract of the parties, but as damages, and follows the rule in 
force in the jurisdiction where the action was brought." Here 
the action was had in Massachusetts upon a judgment rendered 
in California. Shaw, C. J., in Barringer vs. King^ 5 Gray, 9, 

said, where the plaintiff in Massachusetts claimed seven per 
22 



338 DECEMBER, 1891. 

cent, interest according to New York rate on a New York judg- 
ment, "No, this is not interest, but damages, and the rule of 
damages is that of the Court where the action is brought." 

In Hopkins vs, ShepJierd, 129 Mass., 601, Gray, C. J„ allowed, 
in a suit brought on a Maine judgment, interest by way of dam- 
ages from the date of the judgment to the date of the judgment 
in this action, to be computed at the legal rate of interest in 
Massachusetts. Mahurin vs, Bickford, 6 N. H., 667 is to the 
same effect. In Downs vs. Allen, 22 Fed. R., 811, it was held 
that ''In an action upon a judgment, interest thereon is, as a 
rule, allowed by the Courts of this country, in the absence of 
compulsory statutes, upon the amount of the original judgment, 
as damages for the detention of the money, and as equitably 
incident to the debt." 

In the Supreme Court of the United States, Ooddard vs. Fos- 
ter, 17 Wall., 12i>, it was held that in such cases the rule of the 
lex fori prescribes the rate of interest. Two cases in California 
— Thompson vs. Morrow, 2 Cal., 101 (1852), and Cavender vs. 
Guild, 4t Cal., 250 (1854) — are against this view and against 
the great weight of authority, and we decline to follow them. 

Having come to the conclusion that interest may be allowed 
as damages on the New York judgment at the legal rate of in- 
terest in this country, it becomes immaterial what the rate of 
interest in New York was during the time since the judgment 
now sued upon. But as the plaintiff has asked only for six per 
cent., she will be limited to that rate. 

The further question has arisen whether interest is allowable 
at all on a foreign judgment. Interest is allowable by Sec. 
1480, C. Code. " When there is no express contract in writing 
fixing a different rate of interest, interest shall be allowed at 
the rate of 9 per cent, per annum for all moneys after they 
become due on any bond, bill, promissory note or other instru- 
ment of writing for money lent, for money due on the settle* 
ment of accounts, from the day on which the balance is ascer- 
tained, and for the money received to the use of another, from 
the date of a demand made." 

A judgment is a settlement of account. Mahurin vs. Biehford^ 



THE QUEEN t?a. LEONG MAN. 339 

6 N. H., 567. A judgment is a debt due. Klock vs, Robinson^ 
22 Wend., 157. Interest is allowed on a judgment as incident 
to the debt. Williams vs. Bank, 4 Met., 820. This was so held 
by the trial justice. 

We therefore overrule the exceptions and aflBrm the judgment 
rendered below, , 

Thurston & Frear and P. Neumann^ for plaintiff. 

F, M, Hatch^ for defendant. 



THE QUEEN vs. LEONG MAN. 

Exceptions from Third Circuit Court. 

Hearing, December 23, 1891, Decision, February 6, 1892. 

JuDD, C.J., McCuLLY, Bickerton, Dole, JJ. 

A juror is not disqualified to sit on a case of a Chinaman charged with 
selling opium, who says that Chinamen are not to be equally credited 
with a native Hawaiian or a white man, provided his other answers 
show that he will not disregard the testimony because it is from a 
Chinaman, and bears the impress of truth, but would weigh it without 
prejudice. 

The objection to the juror being overruled, and exception taken thereto, 
he was not challenged peremptorily by the defendant, his peremptory 
challenges not being exhausted. Held, the exception avails him 
nothing. 

Evidence of previous sales of opium is competent evidence to show that 
the witness knew defendant, and that he could procure opium from 
him. 

Opinion op the Court, by Judd, C.J. 

The defendant was convicted at the last September term of 
the Circuit Court, at Kau, Hawaii, of the offense of selling opium 
on the 22d January, 1891. Mr. C. Stone, who was drawn on 
the jury, was asked on the voir dire^ " Do you believe that under 
our form of oath, Chinamen are equally to be credited with a 



840 DECEMBER, 1891. 

native Hawaiian or a white man?" He answered, "No, they 
are not." Counsel then objected to Mr. Stone sitting on the 
jury, on the ground of prejudice. The court then asked Mr. 
Stone several questions which elicited the following: " I think 
I could try a case where there is Chinese testimony, and weigh 
the evidence without prejudice if it had tlje impress of truth; 
but I have more confidence in a native's or white man's vera- 
city. When a Chinaman is interested, I have not equal belief 
in their veracity." This is the evidence in the bill of excep- 
tions. The judge's notes are, by the bill, to be used as a part of 
the case. Reference to these show^s that the following must be 
added to Mr. Stone's statements: "I would not throw out the 
testimony because the witness was Chinese. I would have less 
confidence in any witness interested than in one not interested. 
I could have nearly equal confidence in native or Chinese evi- 
dence if interested." 

We think that the whole effect of Mr. Stone's answers shows 
that he was not disqualified by prejudice against Chinese testi- 
mony. A juror to be impartial is not oblidged to say that he 
will give equal credence to every witness that testifies. And 
when a juror says that where there is Chinese testimony, he 
will weigh the evidence without prejudice if it has the impress 
of truth, and would not discard it because it was Chinese, he is 
not disqualified. Moreover, the defendant's counsel might have 
challenged Mr. Stone peremptorily. He did not, and let the 
juror be sworn, not having exhausted his peremptory challenges. 
The following cases are authority for the position than an erro- 
neous overruling of an objection to a juror avails nothing to the 
defendant, if he does not finally exhaust his peremptory chal- 
lenges: Robinson V8. Randall, 82 111., 521. Sullitigs vs. Shakes- 
peare, 46 Mich., 408. Burt vs, Panjaud, 99 U. S., 180. 

W^e therefore overrule the exception. 

The next point is that the court admitted evidence of a wit- 
ness to the efiect that he knew that the defendant's business 
was that of opium selling, and knew of sales of opium made by 
him in January. The day on which opium was sold was laid 
in the charge on the 22d January. The objection was made 



THE QUEEN vs. LEONG MAN. 341 

that previous sales were not relevant to sustain the charge of 
selling on the 22d January. 

The rule of law is well settled that " proof of other offenses 
may be admitted to prove scienter or guilty knowledge or to 
make out the res gestae or to exhibit a chain of circumstantial 
evidence of guilt in respect to the act charged." Wharton's 
Crim. Ev., Section 650. * 

And in this case the questions were allowed to be asked to 
show the previous acquaintance of the witness with the defen- 
dant, and to explain why he knew that defendant had the drug 
for sale, and went to him to buy it. The evidence was compe- 
tent in this view. 

We therefore overrule the exceptions. 

Partially Dissenting Opinion of Dole, J. 

Upon the first exception, although there is sufficient in Mr. 
Stone's examination to support a strong argument against his 
qualification as a juror, yet the exception cannot be sustained, 
inasmuch, as noticed in the opinion of the court, the defendant 
did not challange Mr. Stone peremptorily, nor did he exhaust 
his peremptory challenges. 

As to the exception to the admission of evidence of the defen- 
dant being in the opium business and of other sales of opium 
than the one charged, the general rule is that evidence of colla- 
teral and separate offenses is inadmissible to prove the act 
charged. There are exceptions to this rule, particularly where 
the intent with which an act was done is a part of the issue. 
For instance, on a charge of passing counterfeit money, evidence 
of the passing of counterfeit money at other times by the pri- 
soner is admissible, and on a charge of counterfeiting, evidence 
that the prisoner is a professional counterfeiter is allowed, in 
both cases to prove guilty knowledge and intent. 

The selling of opium, however, outside of the statutory limita- 
tions, must always be with an unlawful intent, and the intent 
is not therefore a part of the issue. 

The strongest support to the introduction of this testimony 
exists in those cases where the issue is a question of adultery. 



342 DECEMBER, 1891. 

In such cases evidence of other acts of adultery, near the time of 
the one at issue, is admissible; but the principle of this excep- 
tion to the rule appears be based on the ground that this 
offence is generally necessarily proved by circumstantial evi- 
dence, and that evidence of circumstances and acts unconnected 
with matter at issue may be admitted as circumstances tending 
to throw light ujlon the question at issue. Thayer vs. Thayer^ 
101 Mass., 113. While the proof of the possession and use of 
opium may often necessarily be by circumstantial evidence, the 
sale of the article is obviously usually proved by direct testi- 
mony. The authority, therefore, of Thayer vs. Thayer does not 
to my mind satisfactorily apply to this case. 

The last ground for overruling this exception mentioned in 
the opinion of the court, i.e., that the questions objected to were 
asked to show the acquaintance of the witness with the prisoner, 
and to explain how he knew that the latter had opium for sale, 
seems to be sufficient, if such evidence was necessary as a part 
of the res gestae y as the prosecuting officer argues it was. Com. 
vs, Cally 21 Pick., 515. It certainly seems to be a natural ques- 
tion to ask a witness in such a case, what was the business of 
the prisoner, but it seems to me that this line of examination 
should not have been followed out as it was, against the objec- 
tion of the defendant's counsel, and that the court erred in 
allowing it. 

C. Creighton, Deputy Attorney- General, for prosecution. 

V. V. Ashford and Paul Neumann, for defendant. 



WAIKAPU SUGAR CO. vg. HAWN. COML. CO. 343 



WAIKAPU SUGAR CO. vs. nHAWAIIAN COMMERCIAL 

AND SUGAR CO. 

Appeal From Order op Judd, C.J. 

Hearing, December 23, 1891. Decision, July 1, 1892. 

JUDD, C.J., BiCKERTON AND DoLE, JJ. 

A president of a corporation is not authorized, virtute officii, to bring suits 
in the name of a corporation. He must have authority from the oop^ 
I>oration to do so, in order to bind the corporation. 

A by-law of a corporation, that its president, '' subject to the advice and 
control of three-fourths of the shares represented at any meeting 
shall have general superintendance of the affairs of the company,'' is 
not sufficient authorization to him to commence a suit at law, without 
the approval of the stockholders or proof of their acquiescence or 
ratification of his act. 

Decision of Judd, C.J., Appealed From. 

The plaintiff is a corporation, incorporated and existing under 
the laws of the Hawaiian Islands. The defendant is a corpora- 
tion, incorporated and existing under the laws of the State of 
California, United States of America, carrying on business in 
this Kingdom. The complaint avers that the defendant has 
unjustly, etc., taken into its exclusive use and occupation cer- 
tain portions of the lands of Waikapu and Pulehunui, on Maui, 
describing them by metes and bounds, to which lands the plain- 
tiff and defendant are equally entitled in fee by purchase as 
tenants in cx)mmon, and from which the defendant has, during 
the period of six years now last past, excluded the plaintiff, hav- 
ing fenced in and cultivated and planted the same, and during 
all said period taken to its exclusive use all the rents, issues and 
profits thereof, and although often requested, has during all of 
said period refused to allow the plaintiff to use, occupy or enjoy 
said portions or any part thereof, or to obtain any benefit or ad- 



344 DECEMBER, 1891. 

vantage therefrom, or to join with the plaintiff in making any 
partition thereof, whereby and by reason whereof the plaintiff 
has been deprived of and prevented from exercising its right 
to use, occupy or enjoy or obtain rents or profits from said por- 
tions, according to the plaintiff's title as aforesaid, to the damage 
of said plaintiff one million dollars. The complaint is signed 
'• The Waikapu Sugar Co., by W. H. Cornwell, President." 
The defendant filed the following plea in abatement: 
" And now comes said defendant, appearing specially for the 
purpose of making this plea, and says that the above action was 
begun and is now pending without authority of the plaintiff 
corporation, and this it is ready to verify." The defendant also 
filed a plea of general issue, not waiving its plea in abatement, 
and a disclaimer of title to one undivided half of all the tracts 
of lands set forth by notes of survey in the plaintiff's complaint, 
said land containing an area of 15,000 acres, more or less, in all, 
and admits the title to be as claimed in the plain tifTs com- 
plaint, to wit, one-half in the plaintiff and one-half in the 
defendant. 

On the 22d July the hearing on the plea in abatement was had 
before me. Mr. Hatch, for the plaintiff, offered in support of his 
plea affidavit of W. M. Giffard, that he is the secretary of the 
plaintiff company and has charge of its record; th^t no meeting 
of the company has ever been held to authorize an action of 
ejectment against the Hawaiian Commercial and Sugar Codj- 
pany; that the by-laws of plaintiff company do not authorize 
the president to take such action; and that a true copy of the 
by-laws of said company is annexed to his affidavit. Mr. G. W. 
Macfarlane testified on behplf of the plaintiff company, that W. 
H. Cornwell is president; G. \V. Macfarlane, vice-president; W. 
G. Irwin, treasurer; W. M. Giffard, secretary; and F. W. Mac- 
farlane, auditor of the plaintiff company; that this action was 
brought by the consent of the president, vice-president and 
auditor; that the treasurer is absent from the Kingdom, and 
that the secretary is also secretary of the defendant company; 
that there are only two shareholders of the plaintiff company's 
stock, viz., G. W. Macfarlane, 1250 shares, and Claus Spreckels, 



WAIKAPU SUGAR CO. r«. HAWN. COML. CO. 345 

1250 shares, and that he believes that Spreckels has transferred 
his shares to the defendant company. 

The by-laws provide that the officers of the Waikapu Sugar 
Company shall be president, vice-president, secretary, treasurer 
and auditor. " And with the exception of the treasurer and 
auditor they shall be stockholders." There is no board of 
directors created by the charter or by-laws. The second by- 
law prescribes the duties of the president. He is to sign all 
written instruments of the company which shall first have been 
approved by the holders of not less than three-fourths of the 
shares, etc. '^ He shall have the casting vote at all meetings 
of the stockholders, and, subject to the advice and control of 
three-fourths of the shares represented at any meeting, shall 
have the general superintendence of the affairs of the company." 

Mr. Hatch, for the defendant, contends that as the by-laws do 
not provide for a board of directors who shall manage the affairs 
of the plaintiff company, and as the by-laws do not confer any 
power upon the president, except the general superintendence of 
its affairs, which means the power to transact its ordinary busi- 
ness, the authority to bring an action like the one at bar 
requires the approval of a majority if not of three-fourths of the 
stockholders. 

Mr. Hartwell (Thurston & Frear and C. L. Carter with him) 
contends that the president of the plaintiff corporation, unless 
restricted by the by-laws or a controlling vote of the stock- 
holders, is the onlv one authorized to institute this suit. The 
charter authorizes the corporation " to appoint such officers and 
agents as the business of the company may from time to time 
require." 

Neither the charter nor the by-laws confer the corporate 
powers upon the directors. Has then the president, as the 
agent of the corporation, a right to institute a suit such as the 
present, without obtaining a vote to this effect from the share- 
holders, under the by-laws, giving him the " general superin- 
tendence of the affairs of the company?" 

In Ashuelot Manufacturing Co, vs. Marsh j 1 Cush.,507 (1848), 
it was held that the president of a manufacturing company has 



346 DECEMBER, 1891. 

no authority as such to commence an action in the name of the 
corporation. The corporation consisted of three persons, the 
president, the treasurer and agent, and the clerk of the corpora- 
tion. The action was begun at the instance of the president, and 
the corporation did not authorize the action. This decision 
announces the conclusion of the Court dismissing the action, 
but does not give any reason, and it is suggested by counsel for 
plaintiff that the suit may have been dismissed because the 
statutes of Massachusetts required that there should be directors 
as well as a president and other officers in all corporations. But 
this learned Court had held in 1822 that an agent of an incor- 
porated company, duly appointed by the corporation, had no 
authority to bind the corporation by a promissory note without 
express authority from the corporation. White vs. Weatport C. 
M. Company^ 1 Pick., 220. The reasoning of the Court in this 
case is that the giving of this note did not relate to the business 
of the company and was not within the agent's general author- 
ity as its agent. 

In Markey V8, Insurance Co., 103 Mass., 93, the Court say: 
"It does not follow from the fact that a man is shown to be 
agent for another, or for a corporation, that his principal is 
bound by all that he does. There are limitations that grow out 
of the very law of agency. * * * In the case of corpora- 
tions created for a special purpose or engaged in a special busi- 
ness, the authority of the agent will be presumed to be limited 
by the nature of that purpose or business." 

In Globe Works vs, Wright, 106 Mass., 215, it was shown as a 
part of a case that an action of replevin was served upon one 
Souther, who was president of the plaintiff corporation. The 
Court say: "These plaintiffs were not a party to that action. 
The fact that Souther was president and general agent of the 
corporation was not conclusive evidence that he was authorized 
to bind the corporation in this respect." 

Following these precedents the Massachusetts Court, per 
Gray, J., said in Mahone vs. R. R. Co., U.1 Mass., 75: "When, 
as in this case, the petitioner for removal (of the case from the 
State to the Federal Court) is a corporation, the petition may 



WAIKAPU SUGAR CO. vs. HAWN. COML. CO. 347 

doubtless be signed and the affidavit made by some person au- 
thorized to represent the corporation. But the authority of any 
person assuming to represent it must appear. No officer of a 
corporation, unless specially authorized, has power to bind the 
corporation, except in the discharge of his ordinary duties. * * 
There can be no doubt that it is no part of the ordinary duty 
of the superintendent of a railroad to represent the corporation 
in any judicial proceedings." 

In the case. Bank of the United States vs, Dunn^ 6 Peters, 51, 
the Supreme Court of the United States would not permit the 
president and cashier of the bank to bind it by their agreement 
with the endorser of a promissory note, that he should not be 
liable on his endorsement. 

This was followed by U. S, vs. Bank of Columbus, 21 Howard, 
356, where it was held that the action of a cashier of a bank, in 
authorizing a person to contract with the United States Treas- 
ury for the transfer of $100,000 from New York to New Orleans, 
was not within the scope of the powers of a cashier, and, not 
not being authorized by the directors, the bank was not bound 
to reimburse the Treasury of the United States. Both the Mas- 
sachusetts Supreme Court and the Supreme Court of the United 
States, in these decisions, refer to Hoyt vs. Thompson, 1 Selden, 
320, with approbation. The head note, which well expresses 
the principle of the case, is as follows: *'Where the manage- 
ment of the affairs of a corporation is entrusted by its charter 
to a board of directors, the president and cashier, unless speci- 
ally authorized by the charter, have no power to assign the 
choses in action of the corporation to its creditor as security for 
the payment of a precedent debt of the corporation, without au- 
thority from the board of directors." The charter in this case 
provided that the business of the company should be managed 
by fifteen directors. 

In Leggett vs. N. J. Manufacturing Co., 1 N. J. Eq., 541, a 
mortgage of real estate was signed by the president and cashier 
of a bank and the corporate seal affixed; but the mortgage was 
not authorized by the directors. The Court say, in reply to 
the contention that the president and cashier, being the recog- 



348 DECEMBER, 1891. 

uized agents of the corporation and having the custody of the 
seal, their acts should bind the corporation; "that corporations, 
like natural persons, are bound only by the acts of their agents 
when made within the scope of their authority, and the Court 
held that, as officers, they had no general authority, ex officio, 
to mortgage real estate. And as they receive no special author- 
ity from the directors the mortgage was held invalid, there be- 
ing no evidence of assent or ratification on the part of the di- 
rectors." 

Gillis V8, Bailey, 17 N. H., 18, is authority for the position 
that a general agent of a corporation, in charge of its lands, 
buildings, etc., cannot make a lease for the purpose of trying 
the title to land into which he has entered for condition broken, 
the vote of the corporation authorizing him to enter and hold 
the land but not to make a lease. 

I think it is well sustained law that "in the absence of any pro- 
vision to the contrary contained in the charter of a corporation, 
it will be presumed that its president, secretary and treasurer 
have the authority to make all necessary contracts in transact- 
ing the ordinary business of the corporation w^ithin the legiti- 
mate scope, object and purposes of its organization." Eureka 
Iron Works V8. Breshnahan, 60 Mich., 339. In this case, how- 
ever, the mortgage to be executed was agreed to by all the di- 
rectors and stockholders of the company, and the mortgage 
drafted and executed in their presence, although no formal ac- 
tion or record of any action taken appears on the records of the 
company. 

So, also, it is clear that "the ordinary affairs of a corporation, 
such as custom has imposed upon or necessity requires of the 
president of a corporation, may be performed by him with- 
out express authority." R. R. vs. Coleman, 18 111., 298, cited 
by plaintiiTs counsel. 

I now come to cases cited by plaintiffs counsel in support of 
the proposition that the president can bring this suit without 
further authority. Kenton Furnace Co. vs. McAlpin, 6 Fed. 
Rep., 741, is cited. Judge Swing of Southern District of Ohio 
charged the jury that "the action is brought by the corporation 



WAIKAPU SUGAR CO. vs. HAWN. COML. CO. 349 

for its own benefit against these defendants; the action relates 
to the buftiness of the corporation solely. The defendant has 
filed in the ease a plea or an answer in the nature of the gen- 
eral issue. He therefore waived all proofs of the due organiza- 
tion of the company, and he also waived all question as to the 
right of the plaintiff to maintain the action. He cannot now 
call upon the plaintiff to furnish proof that it was authorized 
to bring the action. * * * A corporation has a right to 
sue, in all cases which relate to its business, without any reso- 
lution of the board of directors authorizing it to sue." 

The case before me difiers entirely from the above, in that 
here the special plea in abatement was made together with the 
general issue, and the special plea is not thereby prejudiced. 

American Insurance Co. vs. Oakley, 9 Paige, 496, (1842) is re- 
lied on by plaintiff's counsel. Here Chancellor Walworth held 
that **when the president of a corporation authorizes an attor- 
ney or solicitor to prosecute or defend a suit, or to commence 
any legal proceeding in which the corporation is interested, the 
attorney or solicitor will be authorized to appear for the corpo- 
ration, and such corporation will be bound by his acts as their 
attorney or solicitor. And if the president exceed his authority 
in retaining such attorney or solicitor, the corporation must 
look to him for any damages sustained in consequence of such 
authorized act." This was an application to set aside an order 
upon appeal, on the ground that the original application for the 
resale and the appeal had been made in the name of the corpo- 
ration without its authority or assent. 

But the case loses its significance when we read that the 
Chancellor says: ^^The acts and assent of corporations, like 
those of individuals, when not reduced to writing may be in- 
ferred from other facts and circumstances without a violation 
of any known rule of evidence. I am also satisfied in this case 
that the directors, as well as the president of the bank, must 
have been aware of the fact that an application for a resale was 
to be made, or had been made, long before there was any at- 
tempt to repudiate the authority of the agent who had em- 
ployed Mr. Sears to conduct the proceedings." 



350 DECEMBER, 1891. 

In Hoyt vs. Thompson^ decided nine years later than the ease 
from 9 Paige, the Court say, the '^president, cashier, and other 
executive agents of a corporation are sometimes permitted by 
the directors, without express authority, to do acts not within 
the sphere of their official duties or agencies, and are thus held 
out to the public as having authority to do such acts. In such 
case the corporation will be bound by the acts of its agents on 
the ground of implied authority." 

The question before me is not of the character raised in the 
case from 9 Paige, nor is there as yet any evidence which may 
be construed as an assent on the part of the plaintiff corpora- 
tion to the suit. 

I am quite satisfied with the law as found in 1 Waterman on 
the Law of Corporations, section 126. " Beyond the powers 
which usage and custom and the necessities and convenience of 
business require in the executive officer of a corporation, the 
president has no more control over the corporate property and 
funds than any other director." " He may, however, without 
any special authority from the board of directors, perform all 
acts of an ordinary nature which are incident to his office, and 
may bind the corporation by contracts arising in the usual 
course of business." 

But this presumption in favor of authority may always be 
repelled by evidence. 

I restate the question. The charter of the plaintiff corpora- 
tion does not confer the management of the corporate powers to 
a board of directors. By its second by-law the president " sub- 
ject to the advice and control of three-fourths of the shares rep- 
resented at any meeting, shall have the general superintend* 
ence of the affairs of the company." I construe this to mean 
that all the ordinary business of the corporation, which is 
within the legitimate scope, object and purpose of its organ- 
ization, may be done by the president without showing any 
special authority therefor from the stockholders. But a vote 
of three-fourths of the shareholders may compel the presi- 
dent to act in a particular way or veto any contemplated action 
of his. 



WAIKAPU SUGAR CO. f8. HAWN. COML. CO. 351 

The object of this corporation, as expressed in its charter, is 
" the carrying on the cultivation of sugar cane and the manu- 
facture of the same into sugar." The corporation has the ex- 
press power to " carry on the cultivation of sugar cane and the 
manufacture of sugar; to hold real estate and other property; 
to erect and maintain mills, boiling houses, railroads and all 
other machinery and appliances which may be deemed neces- 
sary,* and to do and perform all such other acts as may be neces- 
sary fully to carry into effect said purposes." 

I should say that ordinary suits to enforce contracts for labor, 
to be performed on the plaintiff corporation's plantation, could 
be instituted without special authority from the shareholders, 
in fact, any suit legitimate and necessary to the conduct of the 
plantation. But to bring a suit of the character of the one at 
bar, involving a large outlay of money, is not within the gen- 
eral authority of the president, because it is not within his pow- 
ers of " general superintendence of the affairs of the company," 
He should have the vote of the shareholders to authorize it. 

It may be that this decision, if sustained, will produce the 
result that no suit of this character will be brought, since the 
acquiescence of the holder of one-half of the stock, which is the 
defendant corporation, cannot be obtained. This may be so, 
and it only emphasizes the justice of the rule I have laid down, 
that acquiescence on the part of the stockholders is essential in 
this important matter. If I should overrule the plea and allow 
the action to proceed, the plaintiff corporation would be put- 
ting half of its shareholders to expense and trouble, presumably 
against their consent. The holder of the other half of the 
stock would have his remedy in equity, where the action 
would be upon his own responsibility and at his own cost. 

I therefore sustain the plea. 

Opinion of the Full Court, by Dole, J. 

The authorities cited in the decision appealed from are, in our 
opinion, decisive of the position that the president of a corpora- 
tion cannot by virtue of his office and without authority from 
the corporation begin a suit in the name of the corporation. 



352 DECEMBER, 1891. 

Sec also Wait vs, Nashua Armory, in the Central Law Journal, 
volume 34, number 6. 

The authority to bring this suit is rested by the plaintiflfs 
counsel upon the by-law quoted in the above opinion (by-law 2) 
which gives the president the " general superintendence of ihe 
affairs of the company." It is to be noticed that the first part 
of the by-law gives specifically the power to the president to 
sign all certificates of stock, contracts, deeds, mortgages, leases, 
promissory notes, bills of exchange and other written instru- 
ments of the company, which shall first have been approved by 
the holders of not less than three-fourths of the shares present 
in person or represented by proxy at any meeting. By-law 8 
provides that no meeting of the stockholders shall be qualified 
to act unless two-thirds of the shares shall be represented. 
Thus, in order to enable the president to do any of the specific 
acts enumerated in by-law 2, he must have the approval of the 
holders of at least three-fourths of two- thirds of the stock. The 
latter part of by-law 2, reading that he (the president) * * 
** subject to the advice and control of three-fourths of the shares 
represented at any meeting, shall have the general superintend- 
ence of the affairs of the company," means that the superin- 
tendence of the affairs of the company by the president must be 
with the approval of the same proportion of stockholders, i.e., 
three-fourths of two-thirds of the whole number. 

Acquiescence by the stockholders in. any act of the president's 
general superintendence may be shown by any competent proof, 
and we assume that the ordinary business of the corporation, 
being within the legitimate scope, object and purpose of its or- 
ganization, of which the stockholders may be presumed to be 
aware, may be transacted by the president without a prior 
formal vote of approval by the shareholders. But the above 
proportion of shareholders can compel the president to act in 
any particular way or veto any action of bis. So far from any 
acquiescence by the shareholders in the bringing of this suit 
being shown, the evidence in support of the plea in abatement 
is conclusive that it was not authorized by them. The express 
authority to bring this suit not being given by the shareholders. 



WAIKAPU SUGAR CO. vb. HAWN. COML. CO. 353 

and we holding that the president cannot ex officio bring the 
suit, does by-law 2 confer the authority? Does the term "gen- 
eral superintendence " confer upon the president the power to 
bind the corporation by a suit? The charter and by-laws of 
this corporation are so peculiar, especially in not providing for 
directors, that we find no precedents in the decided cases of 
other courts to guide us. We are therefore free to decide this 
case upon principle. The first part of by-law 2 having so ex- 
plicitly curtailed the power of the president in signing written 
contracts, making the approval of the shareholders a prerequi- 
site, it is a fair inference that it was intended that the president 
should not do an act of so important a nature as the commenc- 
ing of a suit without a similar authorization. We see no diffi- 
culty in regard to the suggestion that this decision would neces- 
sitate the president obtaining specific authority from the share- 
holders in every instance when a suit was brought against a 
contract laborer. A by-law could easily be made conferring 
general authority to bring suits of this nature upon the presi- 
dent, the manager or other officer of the corporation. 

We therefore affirm the decision appealed from and sustain 
the plea in abatement. 

A, S, HartweU, Thurston & Frear and C L. Carter y for plain- 
tiff. 

F. M. Hatch,, for defendant. 
28 



354 DECEMBER, 1891, 



T. A. LLOYD, Deputy Tax Collector, vs. J. KALANA. 

Appeal from Police Justice op Honolulu. 

Hearing, December 23, 1891. Decision, February 6, 1892. 

judd, c.j., mccully, bickerton, dole, jj. 

Opinion op Chief Justice Judd and Mr. Justice Bickekton. 

Construction given to Section 58a of the Tax Law enacted in Chapter 68 
of the Laws of 1888. The tax-payer is not Hable to arrest for unpaid 
personal taxes until November Ist of the year for which the taxes are 
assessed. 

The defendant was arrested on the 15th July, 1891, on the 
written order of the plaintiff, and taken before the Police Justice 
of Honolulu to show cause why he should not be sentenced to 
be imprisoned at hard labor until he discharge the amount of 
his taxes. This order set forth that defendant has failed or neg- 
lected to pay to the Tex Collector of Honolulu, "on or before 
the 1st day of November, A.D. 1891, and thence to the present 
time his personal taxes, which said taxes amount to the sum 
of Five Dollars, assessed upon him for the year 1891, and as no 
property can be found belonging to said Joe Kalana whereon to 
levy by distress as provided by law, therefore," etc. 

Before the Police Court defendant plead to the jurisdiction in 
that the laws in force do not authorize the collection of the taxes 
in the way now attempted. The plea was overruled and after 
proof that the taxes had been demanded of defendant, and that 
he asked for time, the magistrate sentenced defendant, he being 
able-bodied, to imprisonment at hard labor until he discharge 
the tax and costs at 50 cents per day. Whereupon defendant 
appealed to the Supreme Court, and the Chief Justice, then pre- 
siding, reserved this question for the Court in Banco, as follows: 

Does the amendment to the Tax Law, being Section 58a, 
Chapter 68 of the Laws of 1888, give to the Tax Collector the 



LLOYD vs. KALANA. 355 

• 

right to take the body of a person who fails to pay his personal 
taxes, and has the Court the right to sentence him to discharge 
his tax by imprisonment at hard labor before the 1st day of 
November, or does the amendment give the Tax Collector the 
right to pursue all the remedies provided from and after the Ist 
of July, to wit, the remedies prescribed in Chapter 37 of the 
Laws of 1886, especially Section 68 thereof? 

Section 58 of the Laws of 1886 (Chapter 37) is as follows: 
" If any tax-payer shall fail or neglect to pay his taxes to the 
Tax Collector on or before the 15th day of December, the Tax 
Collector may levy the same by distress upon so much of the 
goods and chattels of such person as he may deem sufficient for 
the payment of the taxes due and expenses of collection, and 
sell the same upon the order of a District Judge or Police Mag- 
istrate, after a public notice of five days. Or the collector may 
sue for the amount of taxes in his own name, on behalf of the 
Hawaiian Government, with 10 per cent, added thereto, in any 
District or Police Court, notwithstanding the amount claimed, 
and execution may issue therefor the same as in ordinary civil 
suits. 

" Provided that no property not especially exempt from taxa- 
tion shall be exempted from levy and sale under such execution. 
And provided also that in c^se of personal taxes if no property 
can be found whereon to levy, the Tax Collector shall have 
authority between the 1st day of November and the 30th day of 
June following, to order any constable to take such person be- 
fore any District or Police Justice, and the defendant, if able- 
bodied, may by sentence of said Judge or Magistrate be im- 
prisoned at hard labor until he discharge the amount of his tax 
and costs at the rate of 50 cents per day." 

Section 58a of the Laws of 1888 (Chapter 68) is as follows; 
" All personal taxes shall be due and payable on and after the 
1st day of July of each year, and may be collected by the pro- 
per officer at any time after such date." If any person legally 
liable to pay personal taxes refuse to pay such taxes when 
demanded by the Assessor, the Assessor may proceed against 
such person in the manner provided in Section 58 of said Act. 



356 DECEMBER, 1891. 

It is urged by defendant's counsel that the only effect of 
Section 58a is to make the personal taxes due and demandable 
on the 1st of July of each year, and the provision that the 
Assessor may, when the person refuses to pay these taxes, pro- 
ceed against him " in the manner provided in Section 58 of said 
Act" limits the right of the Assessor to cause the arrest of the 
person to the period therein mentioned, between the 1st Novem- 
ber and 30th June following. 

We think this contention is sound. The whole modus ope- 
randi of assessing and collecting taxes indicates that time is al- 
lowed to the tax-payer during the various stages. The assess- 
ments are made as of the 1st of July of each year. The returns 
of tax-payers are to be made and delivered to the Assessor 
within the days in the month of July mentioned by him in a 
public notice for the delivery of such returns. By the 15th of 
September the tax list must be completed by the Assessors. 
Between the 20th of September and the 1st of October, the tax 
lists are to be open to public inspection. Persons desiring the 
appeal from the assessment made, or claiming exemptions not 
allowed by the Assessor, are to lodge their appeals by the 15th 
of November. The Tax Appeal Courts sit between the 15th of 
November and the 1st of December. The collection of taxes 
must be made and paid into the Treasury by the last day of 
December. 

By the 58th Section as amended in 1886, the various processes 
by which taxes are collectable, i,e,, by distress of goods and 
chattels and by civil suit and execution, cannot be put in action 
until the 15th of December, except that for personal taxes. 
When no property can be found whereon to levy, the Tax Col- 
lector can order the body of the delinquent to be taken, and, by 
sentence of a Magistrate, he be compelled to work his tax and 
costs out. 

This law, as condensed above, is consistent with itself and is 
the result of many acts and amendments by many succeBedve 
legislatures. Then comes in the Act of 1888, and says that per- 
sonal taxes are collectable on the 1st day of July, the very day 
the person is assessed, and it is claimed by the prosecution that 



LLOYD V8, KALANA. 357 

he can be arrested and put to work to discharge these taxes the 
same day. We do not question the right of the Legislature 
to make such a law. 

But to go further and to declare that the Legislature meant 
by the expression " the Assessor may proceed against such per- 
son in the manner provided in Section 68," that when such 
taxes are not paid the Tax Assessor can have the person arrested 
on the 1st of July and imprisoned, by sentence of a Court, to 
discharge his taxes at hard labor, and cut him off from the op> 
portunity between the 20th of September and the 1st of October 
to see from the list what his taxes are, and an opportunity of 
appealing therefrom by the 15th of November, would be to 
give an intention to the Act which is not apparent on its face. 
If the Legislature intended to deprive the person who owes per- 
sonal taxes of the right of inspecting the tax list, or of appeal- 
ing, it should have so expressly enacted. We are not to take 
anything against the liberty of the person by intendment. It 
seems to us that the more reasonable construction is that the 
amendment of 1888 made personal taxes due on the 1st of July 
whereas formerly they were not due until the 1st of November, 
and that the process for collection by distress, suit and arrest 
could then be pursued in the manner and at the times men- 
tioned in the previous Act of 1886. This is careless legislation 
undoubtedly, for it may be that the legislature intended, as was 
urged before us, in this summary way to secure the payment of 
taxes that are often lost on account of persons moving from one 
place to another between the time of assessment and collection. 

The Assessor may proceed against the person " in the manner" 
prescribed by the previous law. That law says that between 
the 1st of November and the 30th of June the delinquent may. 
be arrested, etc. Why is not the date at which the arrest may 
be made a part of the manner? 

The time within which certain things may be done has been 
made an essential element in the assessment and collection of 
taxes. The previous discussion shows this. " A penalty must 
be imposed by clear words" (Broom's Legal Maxims, Sec. 570). 
" The principle," says Lord Abinger, adopted by Lord Tenter- 



358 DECEMBER, 1891. 

den, " that a penal law ought to be construed strictly, is not 
only a sound one, but the only one consistent with our free in- 
stitution." Henderson vs, Sherborn, 2 M. & W., 236. 

We therefore sustain the appeal and discharge the defendant. 

Opinion op McCully, J. and Dole, J. . 

A tax-payer is liable to arrest for unpaid personal taxes, immediately after 
the first day of July. 

The following question was reserved by the Trial Justice in 
the Court below: " Does the amendment to the Tax Law, being 
Section 58a, Chapter 68 of the Laws of 1888, give to the Tax 
Collector the right to take the body of a person who fails to pay 
his personal taxes, and has the Court the right to sentence him 
to discharge his tax by imprisonment at hard labor before the 
first day of November, or does the .amendment give the Tax 
Collector the right to pursue all the remedies provided from and 
after the first of July, to wit, the remedies prescribed in Chapter 
37 of the Laws of 1886, especially Section 58 thereof?" 

Section 58a therein referred to reads as follows: " All personal 
taxes shall be due and payable on and after the first day of July 
of each year, and may be collected by the proper oflScer at any 
time after such date. If any person legally liable to pay per- 
sonal taxes refuse to pay such taxes when demanded by the 
Assessor, the Assessor may proceed against such person in the 
manner provided in Section 58 of said Act.*' 

This amends the previous Tax Law in the respect that per- 
sonal taxes, by which are intended, not taxes upon personal 
property, but the poll, road and school taxes, are due and pay- 
able on the first day of July and may be collected immediately 
thereafter; whereas previously the Tax Collector was authorized 
only from the first day of November to the thirtieth day of June 
following to pursue the method of arrest. This is the apparent 
construction. Against this the defendant contends that Section 
58a applies the whole of Section 58 to this case, which would 
lead to the reading that immediately after the first of July the 
Tax Collector may arrest between the first of November and the 
thirtieth of June. This is absurd, and absurd constructions 



LLOYD V8, KALANA. 359 

are to be rejected. See,Section 13, C. L. Moreover, no amend- 
ment would be effected to the previous statute. But the " man- 
ner provided in Section 68" is distinct from any time wherein 
the mode or manner may be used. 

The statute of 1886 prescribes one time or date, that of 1888 
another for using the same manner or method. 

We were at first impressed with the apparent harshness of a 
tax law which gave the authority to arrest and imprison imme- 
diately upon the tax becoming due. This harshness of arrest- 
ing a tax-payer before he has had time to appeal from his assess- 
ment exists, whichever way the law is construed. For if he 
is liable to arrest on the first day of November, this is fifteen 
days before the sitting of the Court of Appeals, and if he is 
liable to arrest on the first day of July, the fact is still more 
obvious. 

Our own statutes had — we believe the statutes of the States 
have — a time allowed between assessment and enforced collection 
as delinquent. But the reason for the amendment effected by 
the statute before us is not far to seek. We have in this coun- 
try a very large class of the population of shifting residence and 
personally diflicult of identification. Between the first day of 
July, when the names of such would be found on the assessment 
roll, and the first of November, when personal and coercive pro- 
cess could be employed, many of these men would have disap- 
peared from the districts in which they were assessed and would 
be untraceable. To collect their taxes there must be authority 
to proceed against them immediately after assessment made, as 
is now provided for. Our answer therefore sustains the conten- 
tion of the plaintiff. 

F, M. Hatch and Deputy Attorney- Oeneral Creighton, for 
plaintiff. 

/). L, Huntsman, for defendant. 



Note. The Court being divided on this case, the judgment 
of the Police Court of Honolulu, appealed from, stands. 



360 DECEMBER, 1891. 



POLLY MOKUNUI, by her father, Peter Nowlein, vs, MOKE 

MOKUNUL 

Appeal from Judd, C. J. 

Hearing, December 23, 1891. Decision, January 27, 1892. 

Judd, C.J., McCully, Bickerton and Dole, JJ. 

A petition for annulment of marriage, on the ground of non-age, waa re- 
fused, the proote not sostaiDing the allegations. 

Opinion of the Court, by Bickerton, J. Dole, J., Dissenting. 

This matter comes here on appeal from the judgment of the 
Chief Justice, who heard the cause at Chambers and dismissed 
the petition. The petitioner claims the annulment of her mar- 
riage with Moke Mokunui, on the ground that at the time of 
said marriage she was not of legal age, viz., fourteen years, but 
was only twelve years old. It was proved that the marriage 
between the parties took place at Kalalau, in the island of Kau- 
ai, on the 28th of July, 1888. 

This case depends purely on a question of fact as to the age 
of Polly. There is considerable evidence on this point, but it is 
of a very uncertain nature, excepting as to the statements made 
by the father, Peter Nowlein, to the parents of Moke about the 
time of marriage, and also to Mr. Kakina who granted the mar- 
riage license, that his (Nowlein's) daughter was over fourteen 
years old. This evidence is positive and certain. The fact of 
Mr. Nowlein having made these statements stands uncontra- 
dicted by him, and it is fair to presume that they were true. 

We are of opinion that the evidence sustains the findings of 
the Chief Justice. We therefore sustain his opinion, and adopt 
it as the decision of this Court. 



MOKUNUI V9. MOKUNUI. 361 

Opinion of the Chief Justice, Appealed from. 

This is a petition by the father of one Polly Mokunui, for the 
annulment of her marriage with one Moke Mokunui, on the 
ground that she was not, at the time, of legal age, being then 
only twelve years old, having been born on the 24th of June, 
1876. The petition was filed on the 18th of April, 1891, and 
owing to various hearings and continuances that were granted 
to obtain evidence, the case was not closed until July 28th. I 
was liberal in granting continuances as the case was perplexing 
and the evidence contradictory and I wished all the light pos- 
sible. 

It is proved that the marriage between the parties took place 
at that remote and secluded place, Kalalau, on the island of 
Kauai, on the 28th day of July, 1888. It was solemnized by 
Rev. S. K. Oili, the pastor of Hanalei, the license to marry hav- 
ing been issued by J. Kakina, Esq., of Hanalei. The wedding 
was a great occasion in the village. A feast was held to which 
guests from Hanalei came, the father of the respondent being a 
man of some property and consequence in Kalalau. There 
were present the two district judges of Hanalei and Kawaihau 
and two clergymen. The bride's parents, Mr. and Mrs. P. Now- 
lein, had gone to Kalalau some time before this with a sick 

• 

boy, and were guests of the groom's parents, who say that when 
the marriage was proposed Mr. Nowlein said his daughter was 
ove*r 14 years old. The same statement was testified to as hav- 
ing been made by Mr. Nowlein to Mr. Kakina when the mar- 
riage license was obtained. The respondent is proved to have 
been born in October, 1869, and he was therefore past the mar- 
riageable age at the time of the wedding. This young couple 
lived happily enough together until Mr. and Mrs. Nowlein, 
their sick boy having died, determined to return home to Hana- 
lei. They wished the young people to return home with them, 
and after many remonstrances by the young man, who was 
sick, he went with them to Anahola. After a short time he 
desired to return to his home with his wife, but this was refused 
by Mr. and Mrs. Nowlein and he returned without her. Mr. 



362 DECEMBER, 1891. 

Nowlein told him he would have to get his wife through law 
proceedings, as she was not of legal age when she was married. 
This was in March, 1889. The parties lived together some 
seven and a half months, were separated and have not lived to- 
gether since. A petition by the woman for divorce on the 
ground of her husband's desertion was heard by me at Kauai 
in March, 1891, and refused because the facts shown were that 
the husband had returned to his own home and it was his wife's 
duty to go with him, and it was not his duty to remain with 
his father-in-law in order to keep with his wife. 

A great deal of evidence has been adduced to show that the 
woman was born in 1876, as alleged. The testimony is from 
members of the family and neighbors. No written memoranda 
have been produced, however. Children were testified to as 
having been born to Mr. and Mrs. Nowlein in 1870, 1872, 1874. 
1876 and 1878, and one of them, James Kepio, said to have 
been born in 1874, was present in Court. Many of the petition- 
er's witnesses impressed me favorably, especially Laumaewa, a 
brother of the lat« District Judge H. J. Wana. He says that 
he first saw Polly in 1876, the year that his brother Wana was 
elected as a Representative, and thinks she was not a year old, 
perhaps only four or five months old, when he saw her. Wana 
had been gone two or three months to Honolulu when he first 
saw her. Wana must have gone to Honolulu as a Representa- 
tive in April, 1876, and adding the three to the five months 
this would make Polly born in the previous year, 1875. To be 
of legal age at her marriage on 28th July, 1888, she must have 
been born before July 28th, 1874. . But Laumaewa may have 
misjudged her age by her appearance; she is now an undersized 
person and may have been a small baby for her age. 

Rev. A. Pali, who was a former pastor at Hanalei, testifies, 
under a commission, that when he left Hanalei in 1875, Peter 
and Lahela Nowlein then had three children, the last one being 
a girl (presumably Polly), but he does not know how many 
years old she was when he left Kauai. 

I am very reluctant to decree an annulment of marriage un- 
less the proofs are plenary. These young people, I think, 



MOKUNUI vs, MOKUNUI. 888 

would never have separated except for the unreasonable request 
of Polly's parents that she and her husband live with them. I 
am the more averse to granting this petition because it was a 
great wrong for Mr. Nowlein to put out that his daughter was 
over 14 years of age and marriageable, and then set up her non- 
age against the husband when he wished to keep her with him. . 
He knew, or ought to have known, what the marriageable age 
was, and he knew then just how old his daughter was. • I am 
inclined to believe that his first statement to the parents of 
Moke and others is more likely to be correct, if any credence 
can be given to his testimony. But I am authorized by the 
law to refuse to annul the marriage if the parties have for any 
time freely cohabited as man and wife after attaining legal age. 
And I have come to the belief, following Mr. Pali's testimony, 
that Polly must have been born early in 1875, and as she and 
her husband did not separate until March, 1889, she had then 
attained the age of fourteen. I therefore dismiss the petition. 

Dissenting Opinion of Dole, J. 

The opinion of the trial justice, which is adopted as the 
opinion of the Court, is based chiefly on the hearsay evidence 
of the father of the plaintiff, who, according to the testimony of 
Kakina, the officer granting marriage licenses, and his clerk, 
reported her as fifteen years old in 1888, when he procured her 
marriage license, and, according to the parents of the respon- 
dent, represented her as fourteen years old at the time the mar- 
riage was negotiated. 

It appears, on the other hand, from the evidence, that the 
parents of the plaintiff now testify that she was born June 24th, 
1876. James Kepio, her elder brother, says that his parents 
told him that she was born in 1876; Lokia, who says he is an 
intimate acquintance of the family, testifies that the plaintiff 
was born in June, 1876; that he lived in the same house at the 
time and made a memorandum of the event, and helped to take 
care of her. J. Loka, District Judge of Kawaihau, testified that 
he was married to plaintifTs aunt, and thinks the plaintiff was 
born June 26th, 1876, that she was born at his place and he 



364 DECEMBER, 189L 

tried to delay tbe marriage because be knew she was not old 
enough. 

The Court below further argues from the te8tim,ony of Lau- 
maewa, witness for the plaintiff, and Pali, witness for the defend- 
ant, that the plaintiff was born in 1875. 

The substance of Laumaewa's testimony on this point is as 
follows: "I saw her in 1876 on Kauai; she was very small — a 
mere babe in arms. Don't know if she could crawl. Wana, 
my brother, was elected to the Legislature that year. He had 
been gone to the Legislature two or three months when I first 
saw petitioner. I cannot say how old she was, perhaps three 
or four or five months, but I cannot say; it is a conjecture of 
mine merely." 

As the Legislature met that year late in the month of April, 
it may well have been after June when he saw the baby, as it 
was two or three months after his brother went to the Legisla- 
ture. As to his admissions that she may have been three or 
four or five months old, they are valueless, as he said they were 
merely conjectures. So this evidence of Laumaewa, by the rea- 
sonable and almost necessary construction, agrees with and sup- 
ports that of her parents as to the birth of the plaintiff in June, 
1876. 

The following is the substance of Pali's testimony on this 
point: "I knew Nowlein and Lahela, his wife, at Hanalei from 
1868 to 1875; I knew or saw a daughter of theirs, but didn't 
know her name; I knew or saw three children, and only knew 
the name of the eldest, which was Makainui; I don't know the 
month or the year when Polly was born, or how old or how 
largo she was, or whether she could walk when I came away in 
1875; she was born long after my arrival there in 1868; I was a 
clergyman at Hanalei when the children were bo^n, and it is 
only a conjecture of mine {manao wale ko\) that Polly was one 
of them." 

This is the evidence that led the Trial Justice to the belief 
that Polly must have been born early in 1875 — before the month 
of March. My mind is not led to that conclusion, which is not 
supported by any other evidence in the case except the reported 



MOKUNUI V8. MOKUNUI. 366 

statements of the father at the time of the marriage. The most 
favorable construction to Laumaewa's evidence could not put 
Polly's birth earlier than the last month of 1875. Kuula, an- 
other witness, says he was in Hanalei in November or Decem- 
1877, when he saw Nowlein's children, one of whom he believes 
was the plaintiff; she was very small and was beginning to 
walk — could walk, but was not steady on her feet. 

This is not very definite evidence, but it corresponds with 
the theory that the plaintiff was born in June, 1876, which 
would make her eighteen months old, rather than before March, 
1875, which would make her two years and nine months old or 
more when Kuula saw her. which may be regarded as a 
rather advanced age for a child to be learning to walk. 

It appears by the evidence of the plaintiff's father and of J. 
Loka, that James Kapio, her next elder brother, was born Sep- 
tember 5th, 1874. This is not disputed, and makes the theory 
of the decision appealed from that the plaintiff must have been 
born early in 1875, or before the month of June, physically im- 
possible, and renders it unlikely that she was born at any time 
in the year 1875. By this circumstance, therefore, of the time 
of her brother's birth, she could not by any possibility have 
been 14 years old, either when the marriage took place, July 
25th, 1888, or when they separated in March, 1889. 

It is satisfactorily proven to my mind by a preponderance of 
evidence that the plaintiff was born in 1876, probably in the 
month of June, and was consequently under the age of fourteen 
at the time of the marriage in July, 1888, and also at the time 
of the separation in March, 1889, and is therefore entitled to a 
decree of annulment of the marriage. « 

A. Rosa, for petitioner. 

/. H. Barenaba and /. M. Kaneakua^ for respondent. 



366 DECEMBER, 1891 



W. R. CASTLE V8. J. F. BOWLER. 

Motion to Dismiss Appeal. 

Hearing, December 24, 1891. Decision, February 26, 1892. 

judd, c.j., mccully and blckerton, jj. dole j., dissenting. 

It is essential to an appeal on points of law from a Justice of the Supreme 
Court at Chambers, sitting in Intermediary Court, that a certificate of 
appeal, setting forth the points, be signed by the Justice within ten 
days after the decision appealed from is rendered. The King vs. 
Lee Choy^ 7 Hawn., 62; Humuvla Sheep Station vs, AMo^ 7 Hawn., 213; 
and Wenner vs. Lindsay, 7 Hawn., 119, aflOLrmed. 

Opinion op the Cout, by Judd, C.J. 

The plaintiff brought this action in the Police Court of Hono- 
lulu, where judgment was entered in favor of defendant. He 
appealed to a Justice of the Supreme Court sitting at Cham- 
bers, where the same judgment was rendered on the 17th July 
last. 

By the Act of 1886 (Chapter LXII.) he has no further appeal 
on the facts. He however noted an appeal on the 20th July to 
the Supreme Court in Banco, on the ground that the decision 
of the Intermediary Judge was against the law and the evi- 
dence. He paid the costs on the 27th July, and deposited $50 
in lieu of an appeal bond; no certificate of appeal was filed. 
The case went on to the » calendar of the Court in Banco, and 
Mr. Peterson, counsel for defendant, moved to dismiss the appeal, 
as follows : 

1st. That this cause has been tried in the Police Court of 
Honolulu and before Mr. Justice Bickerton sitting in Chambers, 
upon the facts, and judgment in both instances being for de- 
fendant, no further appeal upon the facts can be allowed. 

2nd. That if this appeal is upon the law, no points of law 
have been stated, and the appeal must be dismissed. 



CASTLE vs. BOWLER. 367 

3d. That there is no appeal before this Court, no certificate of 
appeal having been signed, either by the Justice or the Clerk. 
There is nothing before this Court except a notice of appeal. 

We are of opinion that the motion to dismiss must be granted. 

In The King vs. Lee Choyy 7 Hawn., 62, we held that an ap- 
peal from a Police or District Court to the Supreme Court in 
banco, upon questions of law, must comprise a certificate signed 
by the Justice, of the points of law upon which the appeal is 
taken, failing which the Court has nothing to consider. This 
was afiirmed in Humuula Sheep Station vs^Ahlo, 7 Hawn., 213. 

In Wenner V8, Lindsay, 7 Hawn., 119, we held that the cer- 
tificate of appeal from a Justice of the Supreme Court should be 
signed by the Justice, and should state whether the appeal is 
to the Supreme Court in banco on points of law, or an appeal 
for trial on the facts. This decision also lays down that when 
the decision appealed from is written, and the appeal is taken 
on points of law therein stated or decided, the points of law 
need not be re- written (in the certificate of appeal). If the de- 
cision be oral, the points of law appealed from should be re- 
duced to writing by the appellant, signed by the Justice, and 
appended to the certificate of appeal. 

These decisions should settle the practice, and are as authori- 
tative as if made a Rule of Court. We do not say that an ap- 
peal cannot be taken on the question of law whether the evi- 
dence sustains the decision, but this point of law must be sent 
up by the Justice who heard the case, and would have to em- 
brace the evidence. 

The Appellate Court in banco, in such case, would not be au- 
thorized to try the case de novo on the facts, but only to exam- 
ine the evidence so far as to see if there was sufficient to sustain 
the judgment appealed from. A failure to present such a cer- 
tificate to the Justice for signature within ten days of the judg- 
ment is too late. In this case it was presented on the 27th 
August. Such a certificate is a part of the appeal and must be 
presented within the ten days. 

Appeal dismissed. 



368 DECEMBER, 1891. 

Dissenting Opinion by Dole, J. 

I find no law, either in the Statutes or the Rules of Court, 
requiring that a certificate of appeal from a Justice at Cham- 
bers to the Supreme Court on points of law should be signed by 
the Justice within ten days from the judgment, or at any time. 
Such a rule might put it out of the power of a litigant to per- 
fect his appeal at all, it being dependent upon the presence or 
fidelity of an official. 

An appeal is perfected by the independent action of the 
party, and the certificate is merely the official recognition or 
evidence of the fact. 

Section 1007 of the Civil Code provides that a party may ap- 
peal from a judgment at Chambers by giving notice of such ap- 
peal within five days, and paying costs and filing a bond of one 
hundred dollars for further costs within ten days from the de- 
cision appealed from. Rule 4 of the Supreme Court modifies 
the statute by reducing the bond to fifty dollars, and allowing 
the notice of appeal to be made at any time within ten days. 

Rule 39, which provides for appeals from the Police and Dis- 
trict Courts to the Supreme and Circuit Courts, and which re- 
quires that the certificate of appeal should state the points of 
law, where the appeal is to the Court in banco, is merely a di- 
rection to the Justice whose decision is appealed from, and does 
not purport to state the requirements of such appeals on the 
part of appellant, which are fully given in Section 1006 of the 
Civil Code, and does not require that such certificate shall be 
made within ten days from the date of the decision rendered. 

There is no requirement that Judges at Chambers shall cer- 
tify upon the points of law in appeals on the law, as Rule 39 
requires Police and District Justices to do. 

Two of the cases referred to in the opinion of the Court, i. f.. 
Rex V8. Lee Choyy 7 Hawn., 62, and Humuula Sheep Station w. 
Ahloj id., 213, refer only to the requirements of appeals from 
Police and District Courts, and neither of them find that the 
certificate of appeal must be signed within ten days from the 
decision appealed from. 






CASTLE V8, BOWLER. 369 

The other case referred to, L e., Wennsr vs. Lindsayj id. 119, 
is silent as to any requirement that a certificate of appeal should 
be made within ten days from the date of the decision appealed 
from. And in a later case than any of these, Afong vs. Kale, id, 
520, the Court decided, after an exhaustive investigation, that 
in appeals from Police and District Courts to the Supreme 
Court in banco, if the points on which the appeal is based were 
not made during the trial, they must be reduced to writing and 
be presented to the Justice within the ten days, but the case 
contains no recognition of any necessity that the Justice should 
make his certificate within the same time. 

In the case before the Court, a decision was filed July 17th, 
and on the 20th of July the following notice of appeal was filed: 
**The plaintiff herein gives notice of appeal to the Supreme 
Court in banco from the decision of Hon. Justice Bickerton, 
sitting at Intermediary Court of the Island of Oahu, in the 
above entitled cause, on the ground that the said decision is 
against the law and the evidence in the said case." The costs 
accrued were paid, and security for further costs deposited 
within ten days from the date o! the decision. 

Every requirement of the statute and of the rules of Court, as 
a condition of the appeal, has been performed, and the appeal 
has thus been perfected. The plaintiff is now entitled to the 
certificate o! the Judge at Chambers or of the Clerk to that 
effect. The issue is definitely set forth in the notice of appeal, 
t.e., that the decision is against the law and the evidence, which 
raises an issue of law; this is a common form of exception to a 
verdict of a jury by which an issue of law is raised. All neces- 
sary statement of the issue on appeal was thus furnished to the 
Judge who tried the case, and is a part of the record, and noth- 
ing remains but the official certificate of appeal, which the 
plaintiff is not responsible for, and which, as has been already 
noticed, is not required by any statute or rule of Court. 

I am therefore of the opinion that the plaintiff has perfected his 
appeal according to the law, and is entitled to have his case tried. 

A. S, Hartwell, for plaintiff. 

A, P. Peterson, for defendant. 
24 



370 DECEMBER, 1891 



THE QUEEN vs, LAU KIN CHEW, KIN PIEU, CHOY 
TUCK, LEONG MAN HOON, KUNG CHONG and 

TAM SUNG. 

Question Reserved. 

Hearing, December 24, 1891. Decision, January 2, 1892. 

judd, c.j., mccully, bickerton, dole, jj. 

The defendants were tried and acquitted, at the last July Term, upon an 
indictment charging them with the murder of one Lum Yun Kan, on 
the 15th day of May, 1891, at Kamoiliili, Honolulu, Oahu. The evi- 
dence for the prosecution was, that the death of Lum Yun Kun was 
caused by bums he received during the burning of his house. 

These defendants are now charged with arson in the first degree, in thafe 
they did at Kamoiliili, Honolulu, Oahu, on the 15th day of May, 1891, 
in the night time of said day set fire to and bum the dwelling-house 
of one Lum Yun Kun there situate, the said Lum Yun Kun being then 
and there an occupant and inmate of said house. The defendants 
plead their former acquittal in bar of the second indictment Plea 
held good, and prisoners discharged. 

Opinion of the Court, by Judd, C.J. Dole, J., Dissenting. 

The defendants were indicted at the last October Term of this 
Court, for the crime of arson in the first degree in that they did 
at Kamoiliili, Honolulu, Island of Oahu, on the 15th day of 
May, A. D. 1891, and in the night time of said day, maliciously, 
willfully and feloniously set fire to and burn the dwelling-house 
of one Lum Yun Kun there situate, in which said dwelling- 
house there was then and there an occupant and inmate, to wit, 
the said Lum Yun Kun. 

To which indictment the defendants made the following 

Plea. 

And the said defendants, Lau Kin Chew, Kin Pieu, Choy 
Tuck, Leong Man Hoon, Kung Chong and Tarn Sung, being 



THE QUEEN vs. LAU KIN CHEW. 371 

brought to the bar of this Court, and having heard the 
indictment read and the matters therein contained, say that 
they ought not to be put to answer the said indictment, they 
having been heretofore in due manner of law acquitted of the 
premises in and by the said indictment specified and charged 
upon them ; and for plea to the said indictment they say that 
heretofore, to wit, at the July Term of the Supreme Court of the 
Hawaiian Islands, A. D. 1891, they, the said Lau Kin Chew, Kin 
Pieu, Choy Tuck, Leong Man Hoon, Kung Chong and Tarn 
Sung were duly arraigned upon a certain indictment which 
charged them, the said defendants, that at Kamoiliili, Honolulu, 
Oahu, on the 15th day of May, 1891, they with force and arms, 
feloniously, willfully and of their malice aforethought, did kill 
and murder one Lum Yun Kun, contrary to the form of the 
statute in such case made and provided. 

And the said defendants further say that the said murder, so 
charged upon them in the said last mentioned indictment as 
aforesaid, included the burning of the house of the said Lum 
Yun Kun at said time, supposed to have been committed by 
said defendants. 

To which said last mentioned indictment they did then and 
there severally plead Not Guilty, and thereupon a jury then and 
there duly summoned, empanelled and sworn to try the said 
issue so joined, upon their oaths did say that the said Lau Kin 
Chew, Kin Pieu, Choy Tuck, Leong Man Hoon, Kung Chong and 
Tarn Sung were severally not guilty of the said murder ; where- 
upon it was then and there considered by the said Court that 
the said defendants should go thereof acquitted, as appears by . 
the records of the said proceedings now remaining here in Court. 

And the said defendants further say that the defendants now 
here pleading, and the defendants in the aforesaid indictment, 
named and thereof acquitted as aforesaid, are respectively the 
same identical x>ersons and that the said Lum Yun Kun in the 
said last mentioned indictment named is the same identical 
Lum Yun Kun as is named in the indictment to which the said 
defendants are now here pleading. 



372 DECEMBER, 1891. 

Wherefore they pray judgment whether the Crown will or 
ought to prosecute or charge them on account of the premises 
in the said indictment to which they are now here pleading 
contained and specified, and whether they ought to answer there- 
to, and that they may be dismissed by this Court without day. 



The plea was verified by the introduction of the record in the 
former case charging the defendants with murder, and by the 
evidence given at that trial of Dr. Trousseau, who was called by 
the prosecution to prove the cause of death of Lum Yun Kun. 
His evidence is as follows: 

" I examined the Chinaman (Lam Yung) on the 15th of May; 
Mr. Eckardt was in the act of dressing his wounds and burns. 
I told Mr. Eckardt to proceed with the dressing and make him 
as comfortable as possible, but I did not think he had more 
than a few hours to live. He was in a condition from which 
people generally never rally. He had an open incised wound 
about the middle of the right leg near the ankle, then he had 
one finger chopped off and the other fingers injured. He was 
burned all over and black with smoke, I hardly believe that 
there was a part of his skin which was not burnt. The burns 
were the cause of his death — the general burning of the body. 
The wounds would not cause death, they were not serious. The 
injuries could hardly have been done by the hook produced in 
court. I don't think this was the instrument with which the 
wounding was done. It is not impossible, but it is hardly pos- 
sible to inflict the injuries with this hook. It would not have 
cut the bone ; the wounds would all have been well in a week. 
I could not find any wounds which would harm anybody so far 
as life was concerned." 

The identity of the defendants, with those tried for and acquit- 
ted of the murder of Lum Yun Kun, was proved, and the only 
issue is whether the act upon which the indictment for murder 
was based is the same as that upon which the present indict- 
ment for arson is based. The defendants' attorneys rely upon 
Article 8 of the Constitution, which prescribes that " no person 



THE QUEEN vs. LAU KIN CHEW. 378 

shall be required to answer again for an offense of which he has 
been duly acquitted." 

The testimony of the physician, and of others who saw the 
person of Lum Yun Kun soon after the fire, leaves no room for 
doubt that he came to his death by the burning of his body from 
the fire which consumed his house. The wounds inflicted upon 
him by weapons of some character were not sufficient to cause 
death. Having come to this conclusion, it is not necessary to 
discuss the various theories by which the wounds and the burn- 
ing upon the body of Lum Yun Kun might have been produced 
or how the house was set on fire. We understand that the case 
sought to be made against these defendants by the Crown was 
that they killed the deceased by setting fire to the house in 
which he was, which fire burnt his body so that he died in con- 
sequence. The statute of 1876 does away with the necessity of 
describing in an indictment for murder the means of death. 
But if the indictment for murder had set out the burning of the 
house as the cause of death, there would be little room for doubt 
that the plea of autrefois acquit to the indictment for arson in 
the first degree would be held good. And we can see no differ- 
ence whether this was set out in the indictment or not. The 
prosecution would have to rely upon the burning as the cause 
of death, and not upon the wounds made by weapons. On a 
trial of these defendants for arson, how could the presence of 
Lum Yun Kun in the house at the time of its being set on fire 
be proved except by showing the fact that he was found in a 
burned condition near the spot just after the fire. No one saw 
him in the house at the time the house took fire ; therefore the 
arson could not be proved except by introducing evidence which 
would show that murder was committed. We say then that the* 
plea is good, because ** the evidence requisite to support the 
second indictment must necessarily have supported a convic- 
tion in the first." Wharton Crim. PI. and Pr., Section 456. 
Where this plea is made in any case, it will have to be con- 
sidered according to its own facts and circumstances, and it is 
difiScult to lay down any general rule that will apply in every 
case. And many decisions on this topic are apparently con- 



374 DECEMBER, 1891. 

ilicting because the facts in the different cases are not the 
same. 

The prosecution urges with emphasis the statute as found in 
Section 3 of Chapter XL VI. of the Penal bode, ''Where the 
same act constitutes two or more diverse and distinct offenses, 
different in their nature and character, one not being merged 
in the other, the offender may be proceeded against for each, 
and cannot plead a conviction or acquittal for one in bar of 
proceedings against him for the other." It is our duty to give 
effect to this statute, if possible, but if it should conflict with 
Article 8 of the Constitution, the statute must give way. It is 
easy to suppose a case where the statute would api)ly, and the 
constitutional provision not stand in the way. Where a man, 
by the firing of a gun, kills A and also B, the Bh(X)ting is one 
act, but he commits two homicides, and his conviction or ac- 
quittal for killing A would not be a good plea to a proceeding 
against him for killing B. Illustrations might be multiplied. 
In our case the act charged against the defendants in both in- 
dictments was one against the life of a human being. They 
have been acquitted of the charge of murdering Lum Yun Kun 
by setting fire to his house. To charge them now with setting 
fire to Lum Yun Kun's house, he being an inmate thereof, 
would be to charge them again with substantially the same of- 
fense. We therefore hold the plea to be good, and order the 
prisoners discharged. 

Dissenting Opinion of Dole, J. 

The opinion of the Court assumes a premise in this case, 
which is, I think, erroneous. It says, "the only issue is whether 
the act upon which the indictment of murder was based is the 
same as that upon which the present indictment for arson is 
based." This confuses the word act with the word offend. 
The first section of our Penal Code says, "the term offemCy as 
used in this Code, means the doing what a penal law forbids to 
be done, or omitting to do what it commands." The act that 
kills a man is not necessarily an offense: it is only murder 
when it is done with malice aforethought and without legal au- 



THE QUEEN vs. LAU KIN CHEW. 375 

thority or justification ; and it is only arson when it is the will- 
ful and malicious burning of another's dwelling house. So, 
when our laws, as well as the laws of other lands, speak of of- 
fenses they are not speaking of naked acts, but of acts with the 
additional circumstances of intent, personal feeling, etc. 

Our Constitution provides, in Article 8, that "no person shall 
be required to answer for an offense of which he has been duly 
convicted, or of which he has been duly acquitted." The pris- 
oners, having been acquitted of the offense of murder, are not 
thereby relieved under this Article of the Constitution from 
answering to a charge of the offense of arson, even though the 
evidence relied on in the second case is substantially the same 
as that which was produced in the first. 

It is true, that where an offense is charged comprising two or 
more degrees, the conviction of the prisoner of one degree is a 
bar to a subsequent prosecution for another degree on the same 
facts. "Thus where, under an indictment for murder, the de- 
fendant could have been convicted of murder or of man- 
slaughter, then his conviction of manslaughter bars a subse- 
quent prosecution for the murder," and vice versa. Wharton's 
Crim. PI. and Pr., 465. But it cannot be argued that arson in 
the first degree is a degree of murder. 

The following authorities clearly state what appears to me to 
be the rule which is decisive of this case: 

"If the former charge was such an one that the defendant 
could not have been convicted of the latter charge upon it, the 
former acquittal or conviction cannot be plead in bar of the 
latter." 1 Chitty's Crim. Law, 456. 

"The acquittal in one indictment, in order to be a good de- 
fense to a subsequent indictment, must be an acquittal of the 
same identical offense charged in the latter indictment." 1 Rus- 
sell on Cr., 5th ed., 836. 

"The authorities cited and the illustrations given in support 
of the rule, as stated, all show that, to make the plea a bar, 
proof of the facts alleged in the second indictment must be suf- 
ficient in law to have warranted a conviction upon the first in- 
dictment of the same offense charged in the second, and not of a 



376 DECEMBER, 1891. 

different offense. Archbold's Crim. PL, 82, and cases there 
cited. Or, in other words, the party must have been in peril 
of being convicted upon the first prosecution of the same offejiM 
described in the last. Greenleaf states the rule to be, that if 
the defendant upon the first indictment could not have been 
convicted of the offense described in the second, then an ac- 
quittal or conviction upon the former is no bar to the latter. 
3 Greenleaf Ev., Sec. 36. And this we hold to be the true rule. If 
the defendant could not, by any legal possibility, have been con- 
victed upon the former prosecution of the offense charged in the 
second, he can in no just sense be said to be in peril of a second 
conviction of the same offense. To be a bar, the offense charged 
in the present prosecution must agree in laio and in fact with 
some offense of which the defendant might have been convicted 
upon the former prosecution, and in such former prosecution 
there must have been an acquittal or conviction. Com. vs. 
Rohy^ 12 Pick., 496. It is not enough that the act is the same, 
for by the same act the party may commit several offenses in 
law." Freeland vs. People, 16 111., 382. 

As it cannot be said that arson in the first degree and mur- 
der are the same legal offense, by the foregoing authorities the 
acquittal of one cannot be a bar to the prosecution of the other. 

This position is emphatically reinforced by the third section 
of the 46th Chapter of the Penal Code, as follows: "Where the 
same act constitutes two or more diverse and distinct offenses, 
different in their nature and character, one not being merged 
in the other, the offender may be proceeded against for each, 
and cannot plead a conviction or acquittal for one in bar of 
proceedings against him for the other." This has been the law 
in this country for the last forty years, and in the year 1876 
the rule received the following additional legislative sanction : 
" In any plea of autrefois convict or autrefois acquit^ it shall be 
sufi&cient for the defendant to state that he has been lawfully 
convicted or acquitted (as the case may be) of the said offense 
charged in the indictment." Laws of 1876, Chapter 40, Section 
40. 



THE QUEEN vs. AH LUM. 377 

Upon these grounds and authorities, I am compelled to dis- 
sent from the opinion of the Court. 

Attorney-General Whiting^ {A, S. Hartwell with him) for 
prosecution. 

P, Neumann, A, P, Peterson and /. M, Davidson, for defend- 
ants. 



THE QUEEN vs. AH LUM. 

Exceptions. 
Hearing, December 24, 1891. Decision, January 23, 1892. 

JUDD, C.J., McCULLY, BiCKERTON, DoLE, JJ. 

The defendant pleaded guilty in the Polioe Court of Honolulu, to a charge 
of afisault with a weapon ohviouBly and imminently dangerous to hfe, 
to wit, a pistol, on Julia Kauhane. He was sentenced to pay a fine of 
$200 and to imprisonment at hard labor for two years, and appealed to 
this Court. 

Held, that Chapter 7 of the Laws of 1870 conferred jurisdiction upon the 
Police Court of Honolulu to hear and determine the case. 

Held, affirming Begina vs. Young Quaij 8 Hawn., 282, that the statute gives 
the option to the Police Court, in cases of this character, to proceed 
to judgment or commit for trial. 

Opinion op the Court, by Judd, C.J. 

We have examined the brief filled by defendant's counsel, and 
duly considered the case and the opinion rendered thereon by 
Mr. Justice Dole on the 3d of October, 1891 ; and we have come 
to the conclusion that the said opinion ought to be affirmed, and 
accordingly adopt the same as the opinion of this Court. Ex- 
ceptions overruled. 

Opinion op Dole, J. Appealed From. 

The defendant pleaded guilty in the Police Court of Honolulu 
to a charge of '^ assault with a weapon obviously and imminently 
dangerous to life, to wit, a pistol, on Julia Kauhane." He was 



378 ' DECiiMBER, 1891. 

sentenced to pay a fine of $200 and to two years' imprisonment 
at hard labor, and appealed to this Court. His counsel has filed 
a motion in arrest of judgment on the following grounds, to wit: 

1. The record filed herein does not show that the defendant 
was charged with any statutory offense. 

2. The Police Court of Honolulu had no jurisdiction in said 
cause to convict and sentence this defendant. 

3. The charge is not brought under any of the provisions of 
Chapter 6 of the Act of 1882 and Chapter 10 of the Act of 1880, 
inasmuch as it does not aver that the act complained of was a 
felonious assault. 

4. The charge did not aver that the act complained of was 
" not of a highly aggravated nature," so as to show that the 
Police Court had jurisdiction, if the charge was otherwise suffi- 
cient. 

By the Court. 

The course of our legislation covering this kind of assault is 
as follows : ** Whoever shall commit an assault or an assault 
and battery on another witli a knife, sword cane or any other 
weapon, obviously and imminently dangerous to life, shall 
receive fifty lashes on his back, and be fined one hundred dol- 
lars; or be fined not to exceed five hundred dollars, and be im- 
prisoned at hard labor not to exceed five years." Penal Code, 
Chapter 9, Section 8. The jurisdiction to try this class of cases 
was extended to the Police Courts of Honolulu, Hilo and La 
haina under restrictions in 1870. The Act was entitled, ** To 
enlarge the jurisdiction of the Police Courts in certain cases of 
aggravated assault," and is as follows : " Section 1. The sev- 
eral Police Courts of Honolulu, Hilo and Lahaina shall have 
concurrent jurisdiction with the Supreme Court and Circuit 
Courts, of all cases of assault with knives, sword canes and other 
weapons, obviously and imminently dangerous to life, except as is 
hereinafter provided. Section 2. In cases where the offense is 
not of a highly aggravated character, the said Police Courts may 
punish the offender by fine not exceeding two hundred dollars, 
and by imprisonment not exceeding two years; but in eases 



THE QUEEN va. AH LUM. 379 

where such punishment would be inadequate, the offender shall 
be committed for trial according to existing provisions of law." 
Laws of 1870, Chapter 7. By an Act passed in 1880, the Legis- 
lature probably intended to extend the jurisdiction conferred on 
the Police Courts of Honolulu, Hilo and Lahaina by the Act of 
1870, to all other Police Courts and all District Courts, but un- 
fortunately blundered in describing the offense as " felonious 
assault by knife, sword, sword-cane or other dangerous weapon 
injurious to life," This description of the offense forms the 
basis of the three first grounds of the motion. The defendant's 
counsel argues that, whereas the offense charged is ** assault with 
a weapon obviously and imminently dangerous to life," and the 
offense defined in the latter statute is " felonious assault by knife, 
sword, sword-cane or other dangerous weapon injurious to life," 
no statutory offense is charged, the earlier definition, which is 
followed in the charge, being repealed by the statute of 1880. 

I do not find that the description of the offense given in the 
Act of 1870, which follows that in the Penal Code, is repealed 
or amended by the statute of 1880. The first Section of this 
statute is : *' A like jurisdiction with that conferred upon the 
Supreme and Circuit Courts and Police Courts of Honolulu, 
Hilo and Lahaina, is hereby conferred upon all Police and Dis- 
trict Courts of this Kingdom in all cases of felonious assault by 
knife, sword, sword-cane or other dangerous weapon injurious to 
life," etc. It was undoubtedly the intention of the Legislature by 
this Act to confer upon the Police Court of Wailuku, which was 
the only other Police Court then existing, atid all Police Courts 
to be created in the future and all District Courts, the powers in 
cases of assault, which had already been conferred on the Police 
Courts of Honolulu, Hilo and Lahaina, but through careless 
drafting the description of the offense was changed. However 
this different description may affect the practice in the other 
Police Courts and the District Courts, it does not affect that of 
the Police Courts of Honolulu, Hilo and Lahaina, which are 
still subject to the statement of the Act of 1870. 

I therefore find that the charge in this case is a statutory 
offense; that the Police Court of Honolulu, being one of the police 



380 DECEMBER, 1891. 

courts named in the Act of 1870, had jurisdiction to convict and 
sentence the defendant, and I therefore overrule the first and 
second grounds of the motion. 

Under the foregoing construction of the statute, the third 
ground of the motion is fully answered and shown to be inappli- 
cable to the case at bar. 

In regard to the fourth ground, a similar point was made in 
the case of The Queen vs. Young Quai, July Term, 1891, Antt^ 
page 282, in which the charge was the same as in the present ca^e ; 
))ut the Lower Court had committed the prisoner for trial, and 
the Court said, referring to the second section of the statute : 
"It is thus made optional with the lower court either to take juris- 
diction and to proceed to judgment, if it finds the offense to be 
not of a highly aggravated character, or to commit forthwith if 
it finds the offense to be of such a character that the punish- 
ment it is authorized to inflict would be inadequate." This 
ruling correctly states the meaning of the statute, which clearly 
places within the lower court the discretion of treating such a 
case as within its jurisdiction or as one for committal, and gives 
no support to the defendant's proposition, that such discretion is 
in the prosecuting officer. 

Attorney-General Whititigy for the Crown. 

A. S. Hartwellt for defendant. 



MANAKU vs. MOANAULI. 381 



ROSINA MANAKU vs. MOHOLE MOANAULI, ADAM 
PETRIE and JOHN SPENCER. 

Exceptions to Findings of Bickerton, J. 
Hearing, December 24, 1891. Decision, January 13, 1892. 

JuDD, C.J., McCuLLY, Bickerton, Dole, JJ. 

Section 1449 of the Ciyil Code (of the descent of property) being a parti- 
cular enactment, will control where the facts are applicable, and is 
i^ot repugnant, but is an exception to the general rale of descent, laid 
down in section 1448: So where J. M. died intestate leaving a widow 
M. and two daughters B. and K., and E. died under age and unmar- 
ried, the other daughter R takes the share of K., and not M., the 
widow. 

A deed of partition between M., R and K. does not estop B. from claiming 
as heir of K. the estate which came from their father, set off to E. in 
the partition deed. 

Opinion op the Court, by Judd, C.J. 

This is an action of ejectment for a lot of land on King street 
Honolulu, originally granted to M. Kekuanaoa by royal patent 
number* 3024. The essential facts are that one J. Moanauli 
died intestate, seized of this land; that said intestate left a 
widow, Mohole, the defendant, and two daughters, one Rosina, 
the plaintiff, by a former wife, Namoomoo, and one Kalanikapu 
bom to him of the defendant. A deed of partition was made 
on the 20th October, 1887, between the above named widow and 
daughters of J. Moanauli, in which the premises in question 
were set off in severalty to Kalanikapu, who thereafter died at 
the age -of fourteen, unmarried. The two questions raised by 
the exceptions are, Ist, Under the statute of descent, does this 
property go to the mother (defendant) or to the half-sister 



382 DECEMBER, 1891. 

(plaintiff)? 2d, Does the deed of partition affect the plaintiff's 
claim? 

By the 1448th Bection of the Civil Code, if the intestate be a 
woman and leave no husband nor issue, her estate shall descend 
to her father and mother, or to either of them if onlv one be 
alive. By this law Mohole, the mother, as the sole surviving 
parent, would inherit the land from Kalanikapu, her daughter. 
The next section, 1449, is as follows: '*If the intestate shall die 
leaving several children, or leaving one child, and the issue of 
one or more others, and any such surviving child die under 
age, and not have been married, all the estate that came to the 
deceased child by inheritance from such deceased parent shall 
descend in equal shares to the other children of the same 
parent, and to the issue of any such other deceased children, 
who shall have died, by right of representation." 

By this law Rosina would inherit from her half-sister the 
land coming to her, Kalanikapu, from their father J. Moanauli. 
Are these two sections repugnant to each other, and if so, which 
shall cojitrol? 

Section 1448 states the general rule governing the descent of 
property, that in case of failure of issue or husband, the parent 
inherits. Section 1449 states a more special rule, that where 
the estate came to the children from an intestate parent and one 
child dies in minority and unmarried, the share of the child so 
dying goes to the surviving child or children. We think that 
the particular enactment is operative in the particular case and 
that it is not repugnant to the general provision in section 1448. 
This is in conformity to the rule for the interpretation of statutes 
as laid down by Endlich, Section 399, and cases there cited. 
" Where there is in the same statute a particular enactment, 
and also a general one which in its most comprehensive sense 
would include what is embraced in the former, the particular 
enactment must be operative, and the general enactment must 
be taken to affect only such cases within its general language as 
are not within the provisions of the particular enactment." 
This view carries out the fundamental principle of the statute 
of desceut, that property should go from parent to child; and 






MANAKU V8. MOANAULI. 383 

unless the deceased child has by marriage acquired new rela-' 
tions and responsibilities, its share should go to the other chil- 
dren, and not ascend to the parent. 

The part of section 1448 which applies to intestate females, 
being passed in 1872, subsequent to the 1449th section, which 
was in the original statute of descent of 1850, does not repeal the 
1449th section. This Act (of 1872) was passed in order to make 
clear what might have been assumed without any enactment, 
that the same rule as to descent of property from a male would 
apply to females, and was enacted in consequence of a decision 
of this court, Estate of Kaluahine, 3 Hawn., 323 (1871) which 
seemed to make it doubtful. 

The Supreme Court of Massachusetts, under a statute like 
ours, (Gen. Stats. Mass., p. 474), held that where Mrs. R. died 
intestate, leaving two daughters and a husband, and thereafter 
one of the daughters died under age and unmarried, "upon the 
death of one under age and unmarried, the other inherited her 
share." Richardson vs. Stodder, 100 Mass., 528. See also Sedg- 
wick vs, Minot, 6 Allen, 171. 

It is urged against this view that Section 1449 gives only a 
life estate to the minor with a reversion in the sister, and that 
in case the minor's property should be sold by order of Court, 
the right of the sister to inherit would be defeated, which it is 
claimed would be unjust and absurd. But this would be 
equally true if the mother was the inheriting party. The estate 
which Kalanikapu had was of fee simple. It could not be de- 
feated by any event, which could happen iu her, Kalanikapu 's, 
lifetime. The only effect of the statute is this, if she should die 
under age and unmarried, her sister inherits the land; if she 
should live to attain majority and die, then her mother would 
inherit it, and if married, then her husband and mother would 
inherit it equally. The purchaser at the guardian's sale of the 
minor's land would get the title quite as clearly whether the 
sister or the mother and husband should turn out to be this 
person's heirs. 

The defendant claims that the habendum clause in the parti- 
tion deed by which Rosina conveyed to Kalanikapu the land in 



384 DECEMBER, 1891. 

question and " her right, title and interest both at law and in 
equity in the same," estops Rosina from now claiming it. 

An examination of the deed refutes this position. This hab- 
endum clause is followed by these words, '' that the said Ka- 
lanikapu Moanauli shall have, hold, possess and enjoy in sever- 
alty by herself and to her heirs and assigns for her share all 
that property," etc., describing the premises in question. The 
object of the deed of partition was that each coparcener might 
enjoy in severalty what was theretofore held in common, and 
the deed contained no warranty whatever that an after acquired 
title, not existing at the time, should not be set up when ac- 
quired. We think it well established by a long series of deci- 
sions, that partition merely severs the unity of possession 
leaving the title as before. It confers no new title. Partition- 
ers do not by their deed of partition acquire new rights, they 
merely regulate the method of enjoyment of their old rights as 
acquired from the title of their ancestor or grantor. This view 
will be borne out by the following authorities: Doe- vs. Dixim^ 5 
Ad. & Ellis, 834; Wade vs. Deray, 50 Cal., 376; McClure vs. 
McClure, 14 Penn., 134 ; Williams Real Prop., p. 82 ; 1 Wash- 
burn R. P., p. 432. 

We can see no reason why a grantor of real estate may not 
thereafteir inherit the same estate from his grantee. We there- 
fore overrule the exceptions, and the judgment of the lower 
court stands. 

Thurston & Frear, for plaintiff. 

C Brown and F. M. Hatch, for defendants. 



KANAMU vs. WILSON. 385 



KANAMU (w.) V8. C. B. WILSON, Marshal of the Kingdom. 

Exceptions. 

Hearing, December 24, 1891. Decision, July 30, 1892. 

judd, c.j., bickerton and dole, jj. 

A man, claiming to be the father of a certain child, complained to the 
Marshal that a native man was going to take his child to Kauai. The 
Marshal directed a police officer to go to the wharf to preVent any 
disturbance, and, if the matter could not be settled there, to bring 
the parties up to the Station House to settle it, but did not order the 
arrest or detention of any one. The officer brought a woman, the 
child and others to the Station House, where they remained until the 
Marshal came in. 

The woman brought an action of trespass against the Marshal, and the 
jury rendered a verdict for the plaintiff. 

Held, that the Marshal was not liable, there being no sufficient evidence 
that he ordered the police officer to arrest the woman, or to detain 
her at the Station House. 

Held, that the Marshal is only liable for the acts of his deputies. 

Opinion op the Court, by Bickerton, J. 

This is an action for an alleged false imprisonment, involv- 
ing wrongful arrest. The case was heard before the Chief Jus- 
tice and a mixed jury at the October Term (1891) of the Court. 
The jury rendered a unanimous verdict for the plaintiff, and 
assessed damages at $375. Defendant's counsel noted excep- 
tions to the verdict, as being contrary to the law and the evi- 
dence, and gave notice of a motion for a new trial, and there- 
after filed his written motion, on the grounds, (1) that said 
verdict was contrary to law and the weight of evidence, and (2) 
that there was misconduct on the part of the jury in arriving 
at their verdict. On December 11th, 1891, the motion was ar- 
gued before Chief Justice Judd, who ordered the verdict to be 
set aside and a new trial granted, on the ground that there was 
26 



386 DECEMBER, 1891. 

no evidence to support the verdict. At this hearing, the second 
ground, that of misconduct of the jury, was abandoned by the 
defendant, and the plaintiff, by her attorney, excepted to said 
order and ruling. The matter is now here on the plaintiff's 
bill of exceptions. 

The plaintiff claims that she was arrested by a police officer, 
acting under order of the defendant, on the wharf of the Inter- 
Island Steamship Company, in Honolulu, on May 9th, 1891, 
when about to embark for her home on Kauai, and was taken 
to the Police Station at about five o'clock in the afternoon, and 
there detained until about 9 o'clock, p. m. 

The question is, was there an arrest and detention by order 
of defendant, the Marshal? If an arrest was made without the 
order or direction of the defendant, he cannot be held liable 
for the same. The Marshal is not liable for the acts of police 
officers; he is only liable for the acts of his deputies. Laws of 
1888, Chapter VIII., Sections 8 and 11. 

The evidence of what orders or instructions defendant gave 
Officer Crabbe is that of the officer himself, the defendant, and 
his deputy, Mr. Mehrten. The evidence of Crabbe cannot be 
relied on; it is very contradictory and uncertain; then, after 
the evidence of C. W. Ashford as to his conversation with 
Crabbe, how can it be given any weight? Such evidence would 
certainly not be sufficient in itself on which to base a finding of 
fact by a jury. The evidence of defendant and Mehrten is 
positive and certain in this regard. It is, that a man named 
Enders came to defendant and complained that a native man was 
going to take his, Enders', child off to Kauai; that defendant 
then asked if he, Enders, was the father of the child, to which 
Enders replied he was; that defendant said, "If you are the 
father of the child, why do you not go and get it bfwk?" En- 
ders said he was afraid of the native, that he might do him 
some bodily harm. Thereupon defendant instructed Crabbe to. 
go with Enders and see that there was no disturbance, but no 
orders were given to arrest any one, and that nothing was said 
about a woman. The defendant also says, "I might have given 
Crabbe instructions to bring them up to the Station House in 



KANAMU V8. WILSON. 387 

case they could not settle the matter down there; this custom is 
quite general; had no idea any force would be used." This 
evidence is uncontradicted. The only occasion on which de- 
fendant was in any way concerned in this matter before the ar- 
rest was when Enders came to him and asked for the assistance 
of a police officer. How could defendant then have ordered the 
arrest of the plaintiff (a woman), when, as far as defendant was 
informed, there was no one but the native man and child in 
the matter. It may be true that Crabbe did say, as the plaint- 
iff says he did, that he arrested plaintiff by order of the Mar- 
shal. This does not by any means prove that the defendant 
did order the arrest; it is necessary to show the authorizing 
words of the principal himself. 

We are therefore of opinion that the evidence does not sup- 
port the finding that defendant authorized or ordered the arrest 
of plaintiff. 

The next question is, was there such subsequent ratification 
by defendant as would make him liable? It is clear that Offi- 
cer Juen, the Station keeper, telephoned to the Marshal, who 
was at dinner at the time, that the parties whom Crabbe 
brought were at the Station House, but both he and the defend- 
ant say that no names were mentioned at the time. Juen says 
that the Marshal told him "to keep them there." The defend- 
ant says he does not remember saying this; even if he did, it 
could not in any way be construed to mean the detention (if it 
meant such) of the woman, for, as far as the evidence goes, 
there is nothing to show that he had any information that there 
was a woman in the matter, or that the arrest of any one had 
been made, much less the arrest of the woman. 

When the Marshal returned to the Station to settle the mat- 
ter, all agree that he came in and found the parties sitting and 
standing around; that he sat in the midst of them and discussed 
the matter with them, and that there was no charge entered 
against any of these people. 

We are of opinion that there is no evidence to support the 
finding of fact, that defendant ratified or intended to ratify 
any arrest that may have been made, for there is nothing to 



388 DECEMBER, 1891. 

show that he knew that an arrest bad been made of any one, 
and certainly not of the plaintiff, a woman. In regard to the 
woman's being prevented from going home to Kauai by the 
steamer Mikahala, the evidence shows that Paukanani (the na- 
tive man) went on board the steamer to see if the purser would 
take his horse that trip, and the purser refusing, that Pauka- 
nani then returned to plaintiff and told her that they could not 
go. This, if true, would account for and explain their remain- 
ing. 

To warrant a verdict for plaintiff, the jury would have to find 
that defendant ordered the arrest of the plaintiff, or if he did 
not order it, then that after the arrest (if there was one) he 
ratified it. As we have said before, there is no evidence to sup- 
port these findings of fact. It may be, as argued by defendant's 
counsel, that the jury decided the case on the supposition that 
it turned solely on the question of ownership of the child, but 
that was not the issue in this case. 

We therefore overrule the exceptions and order a new trial, 
upon the ground that there is not sufficient evidence to support 
said verdict. 

Dissenting Opinion, by Doke, J. 

The plaintiff claims damages for illegal arrest and imprison- 
ment by the Marshal. The issue now before this Court is solely 
whether the verdict for the plaintiff was against the law and 
evidence. 

It is a settled principle in this Court m such cases, that it 
may not consider whether or not it would have decided the case 
differently from the verdict of the jury, but must simply seek to 
ascertain whether there was atiy substantial evidence support- 
ing the verdict. 

It is not denied that there is evidence showing the arrest of 
the plaintiff by Officer Crabbe ; there is in fact a large amount 
of testimony on this point from Paukanani, the plaintiff's 
escort, Kia Enders, the plaintiff's sister, and the plaintiff her- 
self. There is also the evidence of Officer Juen, that at the 
Station House Crabbe passed the plaintiff over to his custody. 



KAN AMU V8, WILSON. 389 

But it is contended by the defendant that if the plaintiff was 
arrested, he was not liable therefor, because his instructions to 
Crabbe related to a man instead of a woman. This being sup- 
ported by the evidence, and there being no evidence against it, 
would relieve him of responsibility in the matter if the case 
ended there. But there is evidence to the eflfect that, during the 
evening, Juen telephoned to the Marshal this message : " I 
have got these parties here that Crabbe brought here ; child 
case. What shall I do with them?" The answer was, " Keep 
them there." This was a quarter or half-past 7 p.m. There is 
evidence that later the Marshal arrived at the Station House, 
and immediately devoted himself to the solution of the question 
of the custody of the child, who was then in plaintiff's arms. 
About three-quarters of an hour was occupied in the matter, and 
then the child was taken by Enders from plaintifTs arms, under 
the active supervision of the Marshal, and, according to one 
witness, by force, leaving the plaintiff weeping. She was then 
allowed to depart. 

There is considerable evidence to the effect that the Marshal 
authorized the unwarranted arrest of some one, a native man, 
supposed to be in possession of the child. The Marshal in his 
own testimony says : " I did not tell the officer to arrest any- 
one ; I might have given Crabbe instructions to bring them up 
to the Station House in case they could not settle the question 
down there. This custom is quite general. Had no idea that any 
force would be used." This alone is evidence upon which the 
jury had the right to conclude that the Marshal authorized an 
unwarrantable arrest of somebody. There was evidence enough 
to lead the jury to believe that when the Marshal learned by 
telephone that parties in possession of the child in question had 
been brought by Officer Crabbe to the Station House, he gave 
orders to " keep them there." When the Marshal arrived at the 
Station House and found that the party brought there by 
Crabbe was a woman, instead of a man as he had supposed, 
he did not clear himself of responsibility as he might have done 
by instantly releasing her, but there is sufficient evidence to 
have justified the jury in concluding that he ratified the pre- 



390 DECEMBER, 1891. 

vious arrest and imprisonment, by continuing the latter for a 
period of three-quarters of an hour, and that he used the terrify- 
ing influences of this forcible detention in the Station Hous^e to 
deprive the plaintiff of an infant which was in her possession 
with its own mother's consent. 

I find, therefore, that there was evidence to prove the arrest 
of the plaintiff by Officer Crabbe at about 5 o'clock p.m. ; there 
was evidence that she was taken to the Station House and 
placed in charge of Officer Juen, and kept by him in detention 
against her will until a little after 8 o'clock p.m. ; there was evi- 
dence that the Marshal authorized the arrest of some unknown 
man, and after the arrest of plaintiff, authorized her continued 
detention until he should arrive, without, however, knowing it 
was the plaintiff who had been arrested ; and there was the evi- 
dence of Officer Juen, Sam'l Kuula, Paukanani, Kia Enders, 
the plaintiff, Deputy Marshal Mehrten, and the defendant, 
which tended to prove that the Marshal continued the detention 
of the plaintiff from the time he arrived at the Station House 
until she surrendered the child. 

There was substantial evidence upon all these points, and the 
jury having found for the plaintiff, this Court may not disturb 
their verdict. 

Ashford & Aahford, for plaintiff. 

Thurston & Frear and A, Rosblj for defendant. 



THURSTON V8. ALLEN, 391 



K A. THURSTON et al,, Executors of J. N. Robinson, V8, S. C. 
ALLEN et ai., Executors and Heirs of James Robinson. 

Question of Qualification of Chief Justice. 

Hearing, December 28, 1891. Decision, February 8, 1892. 

McCULLY, BiCKERTON AND DOLE, JJ. 

A deTisee to a danghter, E. Y. W. and her heirs, the same to be held in 
tmst by Executors during her life, and upon her decease, in case she 
has not during her life disposed of the said estate by will or other- 
wise, to be distributed to the legal heirs of the devisee, held not to be 
within the Rule in Shelley^s Case. 

Opinion of the Court, by Dole, J. 

An important issue in the consideration of this case on the 
merits, is the question whether the Rule in Shelley's Case is in 
force here, and it was objected that the settlement of that issue 
would favorably or injuriously aflfect the title of the Chief Jus- 
tice in a piece of real estate lately purchased by him, and that 
he is therefore disqualified to sit at the trial of this case, under 
Article 10 of the Constitution. This article provides that no 
person shall sit as a judge or juror in any case in the issue of 
which he may have any pecuniary interest. 

The following provision appears in a certain Will in the chain 
of title of the land in question: *' Subject to my debts and the 
legacies hereinafter granted, with which I first charge my estate, 
I give and bequeath all my property both real and personal 
and mixed to my beloved daughter Eliza Vincent Wood and 
her heirs, the same to be held in trust however, by my executors 
herein provided for, during the natural life of my said daugh- 
ter, and the same to be managed and controlled by them for 
her use and benefit, they accounting for and paying over to her 
the income from the same upon her reasonable request, and 
upon her decease, in case she has not during her lifetime dis- 



♦ 

1 



/ 



ll 



392 DECEMBER, 1891. 

posed of the said estate by will or otherwise, it is my will that 
my executors distribute the said estate and any increase thereof 
among the legal heirs of my said daughter according to the law 
then existing for the distribution of estates of intestates." 

The land was sold by the devisee to A. F. Judd; her husband^ 
and the administrator with the will annexed, joining in the 
deed. 

The will, by the sentence, "In case she has not during her 
lifetime disposed of the said estate by will or otherwise," clearly 
recognizes in the devisee the power of selling the estate, and 
may be said to have conferred such power on her. 

This feature of the will takes all question of the title of this 
land out of the Rule in Shelley's Case, and we therefore find 
that the Chief Justice is not pecuniarily interested in the set- 
tlement of the case at issue. 






L. A. THURSTON ei al, Executors of Estate 'J. N. Robinson, 
V8, S. C. ALLEN et aL, Executors and Heirs of James 
Robinson. 

Submission of Controversy, under Section 1140, Civil Code. 

Hearing, December 28, 1891. Decision, February 17, 1892. 

Judd, C.J., McCully, Bickerton, Dole, JJ. 

The testator devised land to his sons M. and J. for the term of their na- 
tural lives, to share and share alike, and after the decease of M. one 
half to his heirs, and after the decease of J. one half to his heirs. 

Held, M. and J. are tencints in common for life. 

By the Rule in Shelley's Case, M. and J. would have the whole estate abso- 
lutely. But the Rule in Shelley's Case, by virtue of its being a part 
of the Common Law of England, is not in force in this kingdom, the 
Common Law as such not being in force here. Though free to adopt 
the rule, the Court declines to adopt it as the law of this kingdom. 

The intention of the testator should govern in the construction of wills. 
The intention of the testator was to give only a life estate to M. and 



THURSTON VB. ALLEN. 393 

J. This would be defeated by the operation of the Rule in Shelley*s 
Case. 

The " heirs " of J. are whoever are entitled to his property by the statute 
of descent, if he had died seized of this property and intestate. J. 
died leaving a widow but no issue nor father nor mother ; 

Held, that his ** heirs '' are his widow as to one half, and his brother and 
sisters as to the other half. 

A devise of real and personal property to executors in trust, ** the income 
from the same to be paid to J. N. B. for the term of his natural life, 
and after his death I gi^e, devise and bequeath the said' one-eighth to 
his heirs,'* creates a valid trust, and J. N. R. has the income for life 
and at his death the eighth goes to his statutory heirs, who in this case 
are his widow, as to one half, and his brother and sisters as to the 
other half. 

A widow is an ^^ heir " by our statute of descent. 

Submission. 

The undersigned, Lorrin A. Thurston and Caroline J. Robin- 
son, Executors of the Will of J. N. Robinson, deceased, and 
Caroline J. Robinson, Mark P. Robinson, Mary E. Foster, Vic- 
toria Ward, Bathsheba M. Allen and Samuel C. Allen, her hus- 
band, Matilda Foster and W. E. Foster, lier husband, Annie 
Jaeger and Albert Jaeger, her husband, Lucy Mc Wayne and 
Albert Mc Wayne, her husband, and S. C. Allen and M. P. 
Robinson, Executors of the Will of James Robinson, deceased, 
respectfully represent that they are parties to a question in 
difference which might be the subject of a civil action in the 
Supreme Court, which they have agreed to submit to the Jus- 
tices of the Supreme Court without suit. 

That the facts out of which said controversy arises are as 
follows: 

James Robinson, late of said Honolulu, deceased, by his last 
will and testament, duly admitted to probate, a copy of which 
is hereto annexed and made a part hereof, made certain be- 
quests and devises of property within the jurisdiction of this 
Court to his son John N. Robinson. 

Said John N. Robinson died childless on the 25th day of 
March, 1890, leaving a will which has been duly admitted to pro- 



394 DECEMBER, 1891. 

bate, by which he devised all of his estate to his widow, Caroline 
J. Robinson, above named. 

Rebecca Robinson, w^idow of the said James Robinson, died 
before the said John N. Robinson. 

The plaintiffs are the Executors of the Will of said John N. 
Robinson, and his widow. 

The defendants are the brother and sisters of said John N. 
Robinson, and the husbands of said sisters respectively, and the 
trustees under the will of said lames Robinson. 

The questions in issue are : 

1. What estate did John N. Robinson take under the first, 
fourth and seventh paragraphs of the will of said James Robin- 
son? 

2. To what estate is the said Caroline J. Robinson now en- 
titled therein? 



Following are the First, Fourth and Seventh paragraphs of 
the Will of James Robinson, the subject of this controversy : 

First. I give, devise and bequeath to my wife, Rebecca 
Robinson, for the term of her natural life, the house and pre- 
mises in Nuuanu valley, being my present place of residence ; 
also the land of Pakaukai near the Nuuanu valley stream ; also 
the land on the opposite side of the road from my present place 
of residence in Nuuanu valley ; also the fish pond premises near 
the corner of Liliha street and the Ewa road, Honolulu ; the 
whole of the said described property to be held and enjoyed by mr 
said wife for the term of her natural life, or so long as she shall 
remain unmarried and mv widow, and in the event of her 
marriage or death, I give, devise and bequeath the whole of the 
above described property to my sons, Mark Robinson and John 
N. Robinson for the term of their natural lives, to share and 
share alike, and after the decease of Mark Robinson, I give, de- 
vise and bequeath one half of the said property to his heirs, and 
after the decease of John N. Robinson, I give, devise and be- 
queath one half of said property to his heirs ; and it is my will 
that the tomb on the premises aforesaid shall remain there as a 
burial place for myself and my family, and shall never be dis- 



THURSTON V8. ALLEN. 395 

turbed. I also give, devise and bequeath to my said wife, 
Rebecca Robinson, all the furniture and household effects in my 
present place of residence in Nuuanu valley, and the sum of 
twelve hundred dollars a year for the term of her natural life, 
the same to be pdid to her by my executors hereinafter named 
in quarterly payments of three hundred dollars, the foregoing 
provisions to be accepted by my said wife in lieu of dower. 

Fourth, I give, devise and bequeath to my sons, Mark Robin- 
son and John N. Robinson, to share and share alike, for the 
term of their natural lives, all the Pakaka or Point premises 
situated in Honolulu, and all improvements and appurtenances 
to the same belonging, the stone building and premises at the 
corner of King and Nuuanu streets, Honolulu, and the land of 
Hoaeae, Ewa, Island of Oahu, and all tracts of land in Ewa in 
which. I have an interest ; and after the decease of Mark Robin- 
son, I give, devise and bequeath one half of the said property to 
the heirs of Mark Robinson ; and after the death of John New- 
comb Robinson, I give, devise and bequeath one half of the said 
property to John N. Robinson's heirs at law. I also give, de- 
vise and bequeath to Mark Robinson and John N. Robinson, to 
share and share alike, all the cattle, horses and sheep, and all 
other personal property to the land in Ewa aforesaid belonging 
or appertaining. 

Seventh, One-eighth of the rest and residue of my property, 
both real and personal, I give, devise and bequeath to my exe- 
cutors hereinafter named in trust, the income from the same to 
be paid in quarterly payments (here the children other than 
John N. Robinson are devised one-eighth each). One eighth to 
my executors hereinafter named in trust, the income from the 
same to be paid in quarterly payments to my son John N. Rob- 
inson for the term of his natural life, and after his death I give, 
devise and bequeath the said one-eighth to his heirs. 

Opinion of the Court, by Judd, C.J. 

We shall first discuss the first and fourth paragraphs of the 
will in question, and much of the reasoning on these paragraphs 
will apply to the seventh paragraph. Eliminating therefrom 



396 DECEMBER, 1891. 

what is unessential to be discussed here, the devises of the land 
(after the life estate of the testator's widow in the land in the 
first paragraph) are to Mark P. Robinson and John N. Robin- 
son for the term of their natural lives, to share and share alike, 
and after the decease of Mark one-half to his heirs, and after 
the decease of John one-half to his heirs. Condensed still 
further the question is, what is the estate of John in the prop- 
erty, the devise being to him for life as tenant in common 
with Mark, remainder of the moiety to his heirs? We use the 
expression "as tenant in common" advisedly. The conten- 
tion by Ashford & Ashford, for the defendants, that the words of 
paragraphs first and fourth create a joint tenancy in the testa- 
tor's two sons, Mark and John, with the right of survivorship, is 
without foundation. The distinguishing feature of joint tenancy 
is that eaoh has the whole and every part; " each holds per my 
et per tout; each is the holder of the whole." The definition 
quoted by counsel from QreenleafB Cruise, p. 364, " Where lands 
are granted to two or more persons to hold for them and their 
heirs * * without any restrictive, exclusive or explanatory 
words, all the persons named in such instrument take a joint 
estate," destroys the position taken. The words in the devise, 
that Mark and John are " to share and share alike," show con- 
clusively that each is to have and enjoy a half, which would 
make them tenants in common, and that each is not to be holder 
of the whole. Moreover, the limitation in the devise of the 
share of each in the estate to the heirs of Mark and John after 
their decease, respectively, is on its face repugnant to the vest- 
ing of the estate in the survivor, be it Mark or John. See P^^rry 
vs. Woods, 3 Ves. Jr., 204. 

We adhere to the doctrine laid down in Awa vs. Homer, 5 
Hawn.. 543, that it would be unwise to adopt the principle of 
joint tenancy, where a conveyance is made to two or more per- 
sons without indicating how the same shall be held. Such 
estates we consider to be tenancies in common, unless expressly 
declared to be joint tenancies by the instrument creating them. 

The plaintiffs contend that the Rule in Shelley's Case is in 
force in this kingdom, or if not in force it should be recognized 



THURSTON V8, ALLEN. 397 

and adopted in this case, and that accqrding to it the several 
devises in the various paragraphs of the will in question, they 
being devises to John N. Robinson for life, remainder to his 
heirs, created an estate in fee simple in John so that it was 
alienable by him during his life and devisable by him by his 
will. It was admitted and there is no doubt that by the Rule 
in Shelley's Case, if it is law in this kingdom, the devises in 
paragraphs first and fourth would confer such an estate upon 
John, passing by for the present the question whether para- 
graph seven is within the rule. The rule may be stated thus: 
where the devise of a freehold is limited to A for life, and by the 
same devise or conveyance the remainder is limited to "A's 
heirs," A has a single estate of inheritance in the property. 
The word " heirs" is a word of limitation of A's, the first taker's, 
estate ; and heirs under such a devise or conveyance would have 
no greater right than the heirs of any grantee in fee where the 
estate is conveyed directly to the grantee and his heirs. That 
is, the heirs of A take by " descent " from A, and not as " pur- 
chasers " under the grantor or devisor of A. Jarman defines 
the rule thus, " Where an estate of freehold is limited to a per- 
son, and the same instrument contains a limitation, either medi- 
ate or immediate, to his heirs or the heirs of his body, the word 
heiTB is a word of limitation, i.^., the ancestor takes the whole 
estate comprised in this term." 

In the case before us James Robinson, by paragraghs 1 and 4 
of his will, devised certain estates to John for life, and after his 
death to his heirs. By the rule under discussion John took an 
estate of inheritance in fee simple in the land upon the death 
of his father, M^ith the unrestricted right of disposition. This 
is a rule of law and not of cx)nstruction, and in all jurisdictions 
where the common law is in force, unrepealed by statute, estates 
within the rule are controlled by it. This rule takes its name 
from an early case reported in 1 Coke's Reports, 93, in the 23d 
of Elizabeth, about A. D. 1580, as Shelley^Sf though it was then 
an ancient dogma of common law. 

The fundamental question for us to decide is, first, whether this 
rule is in force in this kingdom and, secondly, whether we shall 



398 DECEMBER, 1891. 

adopt it as the law of this case and of this kingdom. We are 
obliged to answer that it is not, by virtue of its being a part of 
the Common Law, the law in this kingdom. This Court has 
held on repeated occasions that the common law is not in force 
in this kingdom. As was said by Mr. Justice McCully in The 
King vs. Robertson, 6 Hawn., 725, ** this is not an English colony 
which brought out the law of England to be in force here, except 
as modified by express statute." As early as 1852 Judge Robert- 
son said, in speaking of the common law of England by which 
a widow is not dowable in leasehold estates; — " but this doctrine 
of the common law has not been adopted in this kingdom." In 
the Matter of Vida, 1 Hawn., 108. The case of Kake vs. Horion, 
2 Hawn., 211 (1860), was an action by a widow to recover dam- 
ages for the death of her husband by the wrongful act of defen- 
dant. This Court then said, " It is urged by counsel for defen- 
dant that the common law of England isan force in this king- 
dom and that therefore the action cannot be maintained in this 
Court. In our opinion this argument is not sound. We do not 
regard the common law of England as being in force here eo 
nomine and as a whole. Its principles and provisions are in 
force so far as they have been expressly or by necessary impli- 
cation incorporated into our laws by enactment of the Legisla- 
ture, or have been adopted by the rulings of the courts of re- 
cord, or have become a part of the common law of this kingdom 
by universal usage, but no further," See also Opinion of Judd, 
C. J., In Re Congdon, 6 Hawn., 635; also of Hartwell J., In Re 
Apuna^ id, 732 ; and Awa vs, Horner, 5 Hawn., 543. 

This Court is authorized to adopt the reasonings and princi- 
ples of the common law '' so far as the same may •be founded in 
justice and not in conflict with the laws and customs of this 
kingdom," Section 823 of Civil Code; and *' Resort may be had 
to the laws and usages of other countries," Section 14 id. 

We and our predecessors on this bench, have felt free to 
examine into the reasoning of every principle of the common 
law as it has been presented to us for adoption from time to 
time. We were much impressed with the statement made at 
the argument by Mr. Peterson, of counsel for the plaintiffs, that 



THURSTON vs, ALLEN. 399 

of the nine hundred rejx)rted cases of this Court, in only about 
nine cases, or one per cent., has this Court departed from the 
common law on the point under consideration. When we have 
followed and adopted the common law, we have felt that its 
reasoning was sound and just, and its principles adapted to our 
circumstances. When we have felt otherwise we have not hesi- 
tated to reject it. And although it may now be asserted with 
considerable assurance, in view of the past history of this Court, 
that when a question arises new to the Courts of this Kingdom, 
we will probably follow the precedents and principles laid down 
by the Courts of those countries where the common law prevails, 
we are not bound to follow them. They are not absolutely 
authoritative, and until further restrained by statute, we shall 
continue to rejoice in our freedom. It was urged upon us that 
we should now adopt the Rule in Shelley's Case, because a num- 
ber of titles had been passed and vested in this country, under 
competent legal advice, according to this rule. We are not aware 
judicially that this is the fact, and isolated instances of hard- 
ship where the rule has been followed would not compel us to 
adopt it, if in our judgment its general eflTect would be pernicious. 

Having declared that this Court is free to adopt the Rule in 
Shelley's Case, or to reject it, we now discuss the considerations 
which should control our judgment. In the first place, if the 
theory which gave it birth was in order that the " lord might 
not be deprived of his wardship by allowing the heir to take as 
purchaser instead of by descent," (2 \Vash. R. P., 269) or 
whether because of the aversion of the common law to an in- 
heritance being in abeyance, we answer that these reasons are 
inapplicable to our circumstances. There is more force in the 
argument that it should be adopted because it favors the free 
alienation of land. But it became law in England when the 
right of alienation of land was not favored by the lords of the 
landed estates. 

If it is such a wholesome rule and so important to establish 
in this Kingdom, why have some twenty-three States of the 
American Union, where it was a part of their fundamental law 
from its colonial period, or adopted by its early statutes or con- 



400 DECEMBER, 1891. 

stitutions, repealed it either wholly or as to wills? We confess 
that the abolition of this rule by the majority of States whose 
circumstances are not unlike our own has great weight with us. 
And the considerations which have led those States to take this 
position, one after another, after having watched its operations 
and being convinced of its unwisdom, are powerful. 

The most cogent reason advanced against the adoption of the 
rule, is that it defeats the intention of the testator in many 
cases. That it would defeat the intention of James Robinson, as 
expressed by his will, is clear. He has expressly made known 
b}' his will that his wish was that his sons should enjoy the use 
of his landed property only during their lives, and that after 
their death it should go to their heirs. He had reasons for this 
sufficiently strong in his own mind. He wished to keep this 
property intact during the lifetime of his sons, or until one 
should die. That this wish has been accomplished by reason of 
the fact that this question was not raised until the death of one 
of them, has no force as an argument. 

The application of the Rule in Shelley's Case to this will would 
undoubtedly defeat the testator's intention. Ch. Kent says that 
though this rule has been firmly established as an axiom of the 
English law of real property for near 500 years, it is admitted 
to interfere, in most cases, with the presumed, and in many 
others with the declared intention of the parties to the instru- 
ment to which it is applied. 4 Kent Com., 218*. Note 1 to 
Section 332 of Jarman on Wills, by Bigelow, says that the ten- 
dency of the American cases in such States (where the rule in 
Shelley's Case is in force) " is strongly in the direction of giving 
effect to the intention of the testator, whenever there is indica- 
tion, however indirect, of a knowledge of the existence of the 
rule, and of a purpose to escape its consequences , provided the 
language of the will is sufficient for that purpose," citing LyiU 
V8, BeveredgCy 58 N. Y., 600 ; Huberts Appeal^ 80 Penn. St., 348, 
etc. 

Chancellor Kent says in 4 Kent's Com. 584*, of the Construc- 
tions of Wills : ^' The intention of the testator is the first and 
great object of inquiry , and to this object technical rules are, 



THURSTON V8. ALLEN. 401 

to a certain extent, made subservient. The intention of the tes- 
tator, to be collected from the whole will, is to govern, provided 
it be not unlawful, or inconsistent with the rules of law." In 
the construction of devises, the intention of the testator is ad- 
mitted to be the pole star by which the courts must steer, id, 
537.* And we find that it was the intention of the testator in 
paragraphs 1 and 4 of his will that his sons Mark and John 
should have only life interests in the lands. 

The plaintiff's counsel claims that the Court has recognized 
the existence of the Rule in Shelley's Case in a decision reported 
in 6 Hawn., 692 — Chillingworth vs. Lindsey, This decision was 
by the late Justice Preston and did not go to the Pull Court. 
But here the Judge held that the facts took the case out of the 
rule and he did not discuss the question whether the rule was 
in existence or not, for it was unnecessary to do so for it was 
not the issue before the C^urt. 

Another position by the plaintiffs is that as the words used 
in the royal patents granting lands in this Kingdom are 
to *'A and his heirs and assigns," the Government and 
the country have recognized and acted upon the rule in 
Shelley's Case. 

It is undoubtedly true that by the common law of England 
the use of the word " heirs" was necessary in a grant in order 
to create an estate in fee or an estate of inheritance. ** If the 
gift was to one without any words of limitation, it was only for 
such a term of time as he could personally hold it, namely, for 
his own life. But if given to one and his heirs, it was under- 
stood to pass in succession after his death, without being sub- 
ject to his control by any act done by him, to his descendants 
who were recognized by the feudal law as his heirs." 1 Wash. 
R. P., 28. Now, although the adoption of the principle, that the 
word "heirs" is a word of "limitation" and not of "purchase," 
undoubtedly led up to the adoption of the rule in Shelley's Case, 
yet it is not correct to say that the adoption by us of the princi- 
ple, that'a grant or devise " to A and his heirs" creates an estate 
in fee in A, would make it necessary to adopt the rule in Shelley's 

Case and thus destroy an estate carved out for life in A, because 
26 



402 DECEMBER, 1891. / 

after his death it was devised to his '^ heirs," for thus the tes- 
tator's intention would be defeated. 

It was clearly the intention of the King and Government in 
the use of the word "heirs" in royal patents to give an estate in 
fee simple to the patentee, and it was introduced to define the 
character of the estate in the patentee. This is supported by 
2 Redfield on Wills, 341. But it does not become necessary in 
this case to discuss the question whether an estate in fee can be 
created by grant or devise without the use of the word "/i^irs." 

As regards the seventh paragraph of the will, or the trust 
clause, we have listened to the able and exhaustive arguments 
by counsel for the plaintiffs and for defendants on the question 
whether the devise in this paragraph is within the rule in 
Shelley's Case. It was admitted by counsel on both sides, and it 
is undoubtedly law, that both estates, the freehold and the re- 
mainder, should be legal or both be equitable or the rule will 
not apply. Counsel for plaintiffs contend that the trust cre- 
ated in the executors by this will is an active, private, executed 
trust, and therefore a legal estate. But, having come to the con- 
clusion that the rule in Shelley's Case is not to be applied to any 
of the devises or bequests in any of the paragraphs of this will, 
we deem it unnecessary to encumber this opinion with the dis- 
cussion of the question whether both estates are legal, or 
whether the estate of the executors (trustees) is equitable and 
that of the heirs of John legal. 

A valid trust was created by the seventh paragraph of the 
will, and must continue so long, as any of the eight mentioned 
children of James Robinson survive. We therefore answer the 
first question of the submission, as follows: John N. Robinson 
took, under the first, fourth and seventh paragraphs of the W^ill 
of James Robinson, an estate for life. 

The remaining question is, "To what estate is the said Caro- 
line J. Robinson entitled?" She is the widow of John N. Rob- 
inson, who died without issue. The fact that John devised all 
his estate to Caroline, his widow, is of no special importance so 
far as the property left by the will of his father is concerned, 
for, as his interest in it was for his life only, he could not de> 



THURSTON vs. ALLEN. 403 

vise it, and he was practically "intestate" as to this property. 
By the first paragraph of the will of James Robinson, one-half 
(undivided) of the lands therein described go now, John being 
dead, to ''his (John's) /ieir«." By the fourth paragraph, one- 
half (undivided) of the land described therein goes now, John 
being dead, to ^^John N. Robinson^s heirs at law" We see no 
difference in this case between the words "heirs'' and "heirs at 
law,'' though the case for the plaintiffs is perhaps strengthened 
by the use of the latter term. The testator has used these terms 
interchangeably. 

By the seventh paragraph, one-eighth of all the rest and resi- 
due of the property, both real and personal, goes now to the 
"heirs" of John N. Robinson. The exact words of the para- 
graph are, "one-eighth to my executors, hereinafter named, in 
trust, the income from the same to be paid in quarterly pay- 
ments to my son, John N. Robinson, for the term of his natural 
life, and after his death I give, devise and bequeath the said 
one-eighth to his heirs." It is not one-eighth of the income that 
is devised to John's heirs, but one-eighth of the corpus of the 
estate. 

Who are the heirs of John N. Robinson? If he had died in- 
testate, by our statute of descent his widow (he dying without 
issue, and his father and mother both being dead,) would be en- 
titled to one half of his property, both real and personal, and 
his brothers and sisters to the other half. Civil Code, Section 
1448. That a widow is a statutory "heir" of a deceased intes- 
tate is clear by Section 1447 of the Civil Code, which reads that 
the property, both real and personal, of a person dying intes- 
tate within this Kingdom shall descend to and be divided 
among his heirs, as hereinafter described. * * ♦ "if he 
shall leave no issue, nor father nor mother, his estate shall de- 
scend, one half to his widow, and the other half to his brothers 
and sisters, and to the children of any deceased brother or sis- 
• ter, by right of representation." 

It is unnecessary to discuss many of the cases cited, which 
declare that a widow is not an heir. She is recognized as one 
by our statute. She is even considered one of the kindred. "If 



404 DECEMBER, 1891. 

the intestate shall have been married, and leave no kindred but 
a widow, then she shall inherit all his estate." Latter part of 
Section 1448, Civil Code. 

It is claimed that the strict, technical meaning of the word 
^^heir" is what James Robinson intended, that is, heirs of the 
blood of the ancestor. We find nothing in the will to indicate 
this. The Statute of Descent, quoted from above, was in force 
at the time James Robinson made his will. We must presume 
that he meant by "heirs" those who, by the Statute of Descent, 
would take the property. It would have been easy for him to 
have limited the word "heir" to those of his blood — but he did 
not. 

In this Kingdom real as well as personal estate of an intestate 
descends together by the same statute to a person's heirs, there 
being no distinction between the descent of realty and person- 
alty. We must bear this in mind, for many of the cases cited 
are from states where the "heirs" take real estate but the per- 
sonal estate is distributed to the "n^xt of kin^^^ according to the 
Statute of Distribution. 

In Tillman vs. Davis^ 95 N. Y., 17, the Court say: "The pri- 
mary meaning in the law of the word *heirs' is the persons re- 
lated to one by blood, who would take his real estate if he died 
intestate. The proper primary signification of the words ^next 
of kin' is those related by blood who take the personal estate 
of one who dies intestate." The decisions in New York State 
are to the effect that a widow is neither an "heir" or "next of 
kin" to her husband. It is held in England that by the words 
"heirs of her late brother, J. S.," was meant the next of kin of 
J. S., according to the Statute of Distributions, together with 
the widow of J. S., if living at testatrix's death." In re Steev- 
ens^ Trusts, 15 Eq. Cases, L. R., 110. In the following cases the 
word "heirs," when applied to personal property, means "those 
that by the Statute of Distributions take the personal property 
in case of intestacy, and hence embraces widows." Eby's Ap- 
peal, 84 Penn. St., 241; Sweet vs. Dutton, 109 Mass., 589; Welsh 
vs. Crater, 32 N. J. Eq., 177; Collier vs. Collier, 3 Ohio St., 369. 

Lavery vs. Egan, 143 Mass., 392, bears a close analogy to the 



THURSTON VB. ALLEN. 406 

one at bar. A testator by his will gave to his four grandchildren 
certain estate during their lives in equal shares, "and when they 
shall respectively decease, to their respective heirs, executors, ad- 
ministrators and assigns." One of the grandchildren, Susan, died 
intestate, leaving a husband. Held, that under the Statute of 
1880, (Pub. St., 124, § 1) her husband took her one-fourth in- 
terest. The Court say that by the statute "the husband or wife 
takes an estate in fee precisely as an heir takes, and we think 
they are to he considered as statutory heirs" "Although, in the 
case at bar, the heirs of Susan do not take from her by inheri- 
tance, but take as persons designated by the will, we know of 
no way of determining the persons intended by the will except 
by ascertaining the persons who by law would have inherited 
the estate from her (Susan) if she had died seized of it and in- 
testate." 

. We adopt this reasoning. We know of no way of ascertain- 
ing who James Robinson intended by the "heirs of John," ex- 
cept by ascertaining who would inherit John's estate, if he had 
died seized of it and intestate. This same construction was 
put by Judge Cooley on the word "heirs," in HascaU vs. CoXy 
49 Mich., 435. 

We therefore answer the last question in the submission as 
follows: Caroline J. Robinson is now entitled to one quarter 
of the lands mentioned in the first and fourth paragraphs of 
the Will of James Robinson, that is, one half of John's half, and 
to one half of the eighth, that is, one sixteenth of the estate 
mentioned and described in the seventh paragraph of the said 
will, as devised to John. 

Costs divided. 

Thurston & Frear, C. L. Carter and A, P. Peterson, for plaint- 
iffs. 

A. 8, Hartwelly F. M. Hatch and Ashford & Ashfordy for de- 
fendants. 



406 DECEMBER, 1891. 



MARY SOUTHERLAND vs. JAMES SOUTHERLAND. 

Appeal from Bickerton, J. 

Hearing, December 30, 1891. Decision, February 27, 1892. 

JuDD, C.J., McCuLLY, Bickerton, Dole, JJ. 

In a bill for Beparation by a wife against her hosband, after consideration 
of the evidence, the Court granted the separation, and awarded the 
oustodj of the children to the respondent. 

This is a bill for separation brought by the wife against her 
husband. After several hearings, in which a great deal of tes- 
timony was taken, Mr. Justice Bickerton, who heard the case, 
filed his decision, dated 5th September last, in which he de- 
creed a separation of the parties from bed and board forever, 
and awarded the custody of the minor children to the plaintiff, 
and alimony for her and their support of $30 a month, etc. 
The respondent apppealed. 

The decision is as follows: 

Decision of Bickerton, J., Appealed From. 

The petition in this matter sets forth that the parties were 
married by the Reverend J. A. Cruzan on 26th March, 1883 ; 
that petitioner has had by respondent two daughters, now aged 
seven and four years respectively; that respondent, during the 
last year, has excessively and habitually ill-treated petitioner 
by calling her foul and filthy names; by accusing her of adul- 
tery with many diflferent men; by habitually using vulgar, 
profane and obscene language in her presence and in the pres- 
ence of their children; by using threats and menaces to the pe- 
titioner and threatening that he "would take her life;" by as- 
saulting her with his fists and knocking her down; by turning 
her out in the streets with her two children at night; by many 



SOUTHERLAND vs. SOUTHERLAND. 407 

and divers acts of violence, cruelty and abuse; that petitioner 
is in distress, and has not money with which to support herself 
and her said two children, nor means with which to pay the 
costs of these proceedings; that respondent has real estate in 
Honolulu of the value of about five thousand dollars, and has a 
sj^lary of $125.00 per month; and prays for a decree of separa- 
tion from bed and board forever, for alimony, for the custody 
and control of the children, and for attorney's fees, and costs. 

The answer admits the marriage, the birth of the two chil- 
dren, and denies the alleged ill-treatment, respondent claiming 
that he has always treated her with kindness and consideration 
and provided for her and their children to the best of his 
ability; that plaintiff is possessed of an evil temper and violent 
disposition, and at times has used abusive and vile language to 
him. That about June or July, 1890, he began to have reason 
to believe that she was unfaithful to him; that in July, 1890, 
plaintiff deserted his house and went to her mother's house, but 
returned to his home in a few days; that in November, 1890, 
she again left his house, taking the children with her, and went 
to her mother's house. Respondent further denies that he 
turned them out into the streets, and alleges that in June, 1891, 
while he was absent from home, plaintiff deserted his home, 
taking the children, and sailed for California; that she carried 
away many articles of furniture arid personal property; that be- 
tween June, 1890, and June, 1891, he has reason to believe that 
on various occasions she committed adultery with one Walker; 
that he was so exasperated by plaintiff that on several occa- 
sions he used strong and forcible language to her; that she has 
told him he was not the father of her children, and threatened 
to poison him, and that he has been in fear of his life; that he 
did lay his hands upon plaintiff about October, 1890, when she 
struck him and assaulted him with a knife; that he did it to 
prevent further harm; that he has frequently forgiven her and 
taken her back; that it is useless for them to attempt to live to- 
gether again, and that she is not a fit and proper person to have 
the care and custody of their said children; and prays that a 
decree of separation forever be entered in his favor, and that the 



408 DECEMBER, 1891 

care and custody of the children be given to him, and that 
plaintiff's prayer for alimony be denied. 

The testimony in this case is very voluminous and conflict- 
ing; there is deliberate falsehood on one side or the other. It is 
a great shame that this matter could not have been settled by 
a mutual separation, instead of dragging all this scandal before 
the Court and the public. Both parties are anxious for a sep- 
aration, and both want the decree in their favor. It is clear to 
me that the decree must be granted in favor of the plaintiff, or 
the petition must be dismissed. I know of no authority under 
the statute by which the Court could order a decree in favor of 
the respondent on his answer, it not purporting to be a cross- 
bill, where he avails himself of the statute and sets up as 
justification the ill-conduct of the plaintiff. See section 1337 of 
the Compiled Laws, which reads: "In any suit brought for a 
separation, the defendant shall be permitted to prove, in his 
justification, the ill-conduct of the complainant, and, on estab- 
lishing such defense to the satisfaction of the Court, the suit 
may be dismissed." 

Although both parties pray for a separation, yet there is not 
the slightest indication of collusion; on the contrary, each 
party has done all in his or her power to show the ill-conduct 
of the other. The charge of adultery, made by respondent 
against plaintiff, brought out considerable testimony on both 
sides. Now, to establish this charge, it is necesssary that the 
proof should be positive and conclusive, as it would have to be, 
should the party be charged with the criminal offense of adul- 
tery, before a conviction could be had. Although it is not 
necessary that there should be eye witnesses to the act itself, 
yet the evidence must be of such a nature that it convinces the 
Court or jury, beyond a reasonable doubt, of the guilt of the ac- 
cused. The evidence in this case does not so convince me that 
plaintiff had been guilty of adultery with the said Walker, and 
the evidence is solely confined to him and no other man; the 
plaintiff may have shown some indiscretion, but the proof fails 
in showing any illegal intercourse between them ; even if it had, 
the offense has been condoned^ the parties having lived to- 



SOUTHERLAND vs. SOUTHERLAND, 409 

gether as man and wife since the tim^of the alleged adultery. 

It is clear to ine from the evidence that it is utterly impossi- 
ble for these parties to live together under the circumstances 
and their present state of feeling. It is one of those unfortu- 
nate cases where reconciliation, at any rate for the present, can- 
not take place. 

The question of the custody and control of the children is 
one of great moment; they are of tender years, and should not 
be placed in a boarding school unless it is absolutely necessary. 
This would have to be done if the custody was awarded to the 
respondent, for the nature of his employment is such that he is 
away from Honolulu most of the time, and he could not main- 
tain a home for them. The evidence of his general good char- 
acter and industry in his employment is very satisfactory; I 
could not say he was an improper person to have the custody 
of the children. These children are girls, and require the 
proper care and attention of a mother. The question is, is the 
mother a proper and fit person to^have the care of these little 
girls? It is contended that she is not. From the evidence I 
do not find that she is unfit to have charge of these minors; she 
has, perhaps, a violent temper at times, but there is no evidence 
of any acts of violence on her part toward her children; on the 
contrary, she seems to have taken good care of them. 

The question of alimony is one of importance to all con- 
cerned. It appears that there is a large amount of debts to be 
paid by the respondent, and that he has had to draw two years' 
rent in advance from the Fort street property to enable him to 
pay off what debts he has, and for money to carry on these pro- 
ceedings, so that at present his only income is his wages of 
$125 per month. The plaintiff and children must have some 
support, and the children must be educated. 

I decree a separation of the parties from bed and board for- 
ever, and I award the care and custody of the said children to 
the plaintiff, their mother, the respondent at all times to have 
the right to see and visit said children. And I order that the 
respondent shall pay to the plaintiff the sum of thirty dollars 
per month, payable the last day of each month, beginning Aug- 



410 DECJiMBER, 1891. 

ust 31st, 1891, for the mahitenance and support of the plaintiff 
and her children, she paying for education and clothing and 
other expenses of the children. The respondent to pay costs of 
these proceedings and fifty dollars for counsel fees. Parties 
may apply from time to time to the Court for modification of 
this order, or for such other and further relief as the circum- 
stances may require. 

Opinion of the Full Court, by Judd, C.J. 

Having heard the arguments of counsel and read the evi- 
dence as taken by the short-hand reporter, we now think that the 
decree ought to be sustained, so far as it grants the separation. 
Both parties desire it, not coUusively, but on account of the ir- 
reconcilable difierences between them. 

The proofs show that the respondent is an engineer on one of 
our domestic steamers, and is necessarily absent from his home 
in Honolulu most of the week. The proofs also show circum- 
stances casting very grave suipicion upon the fidelity of the 
plaintiff to her marriage vows, and that these, when brought to 
notice of her husband, the respondent, excited him to the use of 
violent and bad language, and on one occasion, which he ad- 
mits, to personal violence upon his wife. There is evidence of 
unseemly language used by the plaintiff also, and on the part 
of her family, and often in the presence of the little children. 
While no one can justify the use of profane and indecent lan- 
guage, nor violence, towards a wife, whatever be the provoca- 
tion, these acts would hardly have warranted a separation, and 
we infer it would not have been granted if the respondent had 
not prayed the Court in his answer to grant it. But with the 
evidence before us of the conduct of the plaintiff, and of her as- 
sociations, we are averse to awarding her the custody of the 
children. We cannot find that the conduct of the father war- 
rants us in taking them from him. 

We therefore reverse the decree, so far as it awards the cus- 
tody of the children to the plaintifi" and orders alimony to be 
paid for their support. The Court now t wards the custody of 
the two children, Mary, born December 3d, 1883, and Margaret, 



DUNCAN V8. WILDER STEAMSHIP CO. 411 

born September 5th, 1886, to the respondent. The usual par- 
ticulars as to access of plaintiff to the children and leave to 
apply for modification of the relief, to be in the decree. 

Dissenting Opinion of Bickerton, J. 

Having heard the testimony of the witnesses and the argu- 
ment of counsel at the hearing oi this cause, and after consider- 
ing the very contradictory statements of the two sets of wit- 
nesses for the plaintiff and respondent, which cannot both be 
true, I arrived at the conclusions set forth in my decision, incor- 
porated in the above opinion. And having heard the subse- 
quent argument of counsel before the Court in banco, I cannot 
find or see any reason for changing my opinion, and therefore 
adhere to the same. 

/. A, Magoon, for plaintiff". 

W. 0. Smithy for defendant. 



J. L. DUNCAN V8, WILDER STEAMSHIP COMPANY. 

Exceptions. 
Hearing, December 31, 1891. Decision, March 1, 1892. 

McCuLLY, Bickerton and Dole, JJ, Judd, C.J. being dis- 
qualified by reason of pecuniary interest in the defendant 
company. 

An employee is liable for the oondaot of his servant, whether it is lawful 
or not, if it is within the scope of the authority conferred tlpon him, 
either expressly or by fair implication. 

The defendant company, not having participated in the act complained of 
by plaintiff, is liable to him only for the actual damages attending the 
act of the master, if that act was unlawful, and no exemplary or puni- 
tive damages can be allowed against defendant. 



412 DECEMBER, 1891. 

Opinion op the Court, by Dole, J. 

This is an action of trespass for false imprisonment, and was 
tried at the last July Term of this Court, Mr. Justice Bickertou 
presiding. 

The defendant is a corporation owning steam vessels and carry- 
ing on a coasting business among the Hawaiian Islands. On 
the morning of the 18th day of October, A. D. 1890, just after 
midnight, while the Claudine, one of the steamers of the defend- 
ant, was lying at the port of Lahaina with steam up, there was 
an altercation between the plaintiff and Captain Lorenzen, mas- 
ter of the Claudine, which was terminated by the arrest of the 
plaintiff, and his removal from the vessel by two police officers, 
by virtue of the following order : 

'* Wilder Steamship Company, Lahaina, October 18th, 1890. 
Deputy Sheriff of Lahaina. I request you to arrest and take 
out of my steamer Claudine, Mr. Duncan, Chief Engineer, for 
mutinous conduct and obstructing me in the navigation of said 
steamer. 

(Sig.) T. C. Lorenzen, Master S. S. Claudine." 

The plaintiff was taken ashore by the police officers, and kept 
in custody for several days, and finally taken to Honolulu, where 
he was set at liberty by the Marshal. 

The plaintiff claimed $5,000 damages, and the jury returned 
a verdict for $1,000. The defendant excepted to the verdict, as 
contrary to the law and the evidence, and also to the instruc- 
tion requested by the plaintiff, that "if the Captain, the servant 
of the defendant, ordered the Sheriff to arrest the plaintiff, and 
he did so arrest him and restrain him of his liberty without a 
warrant, while plaintiff was not doing any unlawful act, the 
verdict must be for plaintiff." The defendant also excepted to 
the refusal of the Court to give the following instructions : 

"1. It was therefore within the scope of the master's author- 
ity to restrain plaintiff pn board or to remove him from the 
ship, but if the master ordered him into custody or imprison- 
ment on shore in a manner not authorized by law, such act was 
beyond the scope of his authority as such master, and his em- 



DUNCAN V8. WILDER STEAMSHIP CO. 418 

ployers, the defendant company, are not responsible for such un- 
authorized act, nor liable in damages therefor." 

*' 2. There having been no express authority from the com- 

« 

pany to the master to order plaintiff into imprisonment on 
shore, his implied authority does not reach to that act. There 
is an implied authority to do all those things that are necessary 
for the protection of property intrusted to a person or for ful- 
filling a duty which he has to perform, but nothing more or 
further." 

" 3. From the time of plaintiflTs arrival on shore, his deten- 
tion and treatment were beyond the scope of the master's author- 
ity and duty to control, and for such detention and treatment of 
plaintiff on shore the defendant company are not responsible 
or liable in damages." 

" 4. If the jury shall find the plaintiff entitled to a verdict 
and to damages, the amount of such damages must be confined 
to the loss or damages actually incurred or suffered by plaintiff 
as a direct and immediate result of his having been placed on 
shore at Lahaina by the master of the ship." 

" 6. Plaintiff's imprisonment while on shore or thereafter, 
or anything in his treatment by the police after his arrival on 
shore, should not be considered in reaching such estimate." 

On the question of the liability of the defendant for the acts 
of its servant, the master of the Glaudine, it is a well established 
principle of law that an employer is liable for the conduct of 
his servant whether it is lawful or not, if it is within the scope 
of the authority conferred upon him, either expressly or by fair 
implication. There is some conflict in the precedents as 'to the 
application of this principle, but the prevailing rule appears to 
be this, as set forth in Wood's Master and Servant, 594 : 

" In all cases the act must have been done while engaged in 
the prosecution of some business for the master, and that busi- 
ness must have been such as the servant had authority from 
the master to do. That is, he must have been authorised either 
expressly or impliedly to do the act in some manner which he 
has improperly or wrongfully performed, and the fact that he 
was only authorized to do the act in a certain way (that is, 



414 DECEMBER, 1891. 

correctly) does not save the master from liability. If he was 
authorized to do the act at all, the master is liable for the con- 
sequences of his doing it in a different manner, if the mode 
adopted by him is so far incident to the employment that it 
comes within its scope ; for, having given the servant authority 
in the premises, he alone must suffer for its abuse. He has set 
the wrong in motion and must abide the consequences as against 
innocent parties." 

The rule is more concisely stated on the 595th page, as 
follows : 

" For a willful and malicious trespass of a servant, not com- 
manded or ratified by the master, but perpetrated to gratify the 
private malice of the servant under mere color of discharging 
the duty which he has undertaken for his master, no action will 
lie against the master. But if the act of the servant was neces- 
sary to accomplish the purpose of his employment, and was in- 
tended for that purpose, however ill advised or improper, then 
it was implied in the employment and the master is liable, 
though the servant may have executed it willfully and mali- 
ciously. These rules apply to corporations as to private in- 
dividuals." 

The following cases are among those which support this state- 
ment of the law: Bayley V8, Manchester R. R, Co,, L. R. 8 C. 
P. 148 ; Fraser vs. Freeman, 56 Barb., 234 ; Bryant vs. Rich, 106 
Mass., 188 ; Limpus vs. London Omnibus Co., 1 H. & C. 526 ; 
Midland R. R. Co., vs. Daykin, 33 Eng. L. & E., 193, 9 C. & P., 
607; Phil. & Read. R. R. Co., vs. Derby, 14 How., 468; Weldon vs. 
Harlem R. R. Co., 6 Bosw., (N. Y.) 576 ; Snodgrass vs. Bradley, 
2 Grant's Cases, (Penn.) 43. 

It was within the scope of the Captain's employment to keep 
order and enforce discipline on the ship, and on this occasion it 
became necessary for him to take summary measures to do so ; 
but the fact that he made a mistake in judgment in carrying 
out his legitimate purpose, and illegally subjected the plaintiff 
to injurious treatment, does not relieve the defendant, and it is 
liable in damages for the injury sustained by the plaintiff, in- 
cluding the restraint after leaving the vessel, that being the 



DUNCAN vs. WILDER STEAMSHIP CO. 415 

continuation and natural consequence of the wrong initiated by 
the defendant's agent on board. 

In accordance with the foregoing statement of the law, we 
overrule all of the defendant's exceptions to the instructions of 
the Court or its refusal to instruct the jury in relation to the 
questions of the defendant's liability, and of plaintiflTs right to 
damages for the continued restraint suiBfered by him after having 
been taken from the vessel. 

The defendant further asked that the following instruction be 
given to the jury : " The defendant company, not having parti- 
cipated in the act complained of by the plaintiff, are liable to 
him only for the actual damages attending the act of 
the master, if that act was unlawful, and no exemplary 
or punitive damages can be allowed against defendants." 
This instruction was refused, and the defendant excepted, 
and excepted also to the charge of the Court as a whole. 

This last instruction should have been given, if not in the 
word^ requested, then in other words substantially covering the 
ground. We find no instruction on this point in the charge of 
the Court as reported, though it contains nothing directly in- 
consistent with it. 

The defendant was entitled to have the attention of the jury 
called to this distinction between actual damages and exemplary 
or punitive damages, and to have them instructed to base their 
estimate of damages solely upon the actual injuries suffered by 
the plaintiff as the result of the unlawful conduct of the agent 
of the defendant. Amiable Nancy, 3 Wheat., 558 ; McOuire V8, 
Golden Gate, 23 Myers Fed. Dec, 4661-2 ; Field on Damages, 
Sees. 93 and 679. 

For the want of instruction on this point the jury may have 
adopted the principle of exemplary damages in making up their 
verdict, and so have returned a larger amount against the defen- 
dant than if they had been limited to actual damages. It was 
the defendant's right to have been protected from this danger 
by the Court, and this not having been done, it seems to us that 
the verdict should be set aside as to the amount of damages, and 



416 DECEMBER, 1891. 

a new trial allowed to reconsider and decide the question of the 
amount of damages. And we so order. 

Paul Neumann and A, P. Petersony for plaintiff. 

Ashford & Ashford, for defendant. 



AH LEONG V8. KEE YOU. 
Appeal from Dole, J. 

Hearing, December 31, 1891. Decision, April 2, 1892. 

judd, c.j., bickerton and dole, jj. mccully, j., absent. 

Held, that a certifloate of appeal on points of law, although not strictly 
fonnal, complies with the law if it is in such language as will clearly 
inform the Appellate Court of the question 'of law raised: 

That Police Courts have no jurisdiction to issue their civil process to be 
served outside of the district in which the Court is located: 

That an appeal lies to the Supreme Court at Chambers on points of law 
from the Police Court: 

That the fact of the defendant having been served with the summons 
while out of the jurisdiction of the Court which issued it, does not af- 
fect the legahty of the seizure of the property in the district where 
the writ was issued, and where the property was seized: 

That a legal service must be made on defendant before a personal judg- 
ment can be rendered against him. 

Opinion op the Court, by Bickerton, J. 

This is an action of replevin for a horse before the Police 
Court in Honolulu^ where judgment was rendered for plaintifif 
for the restitution of the horse and $23 damages, and costs 
$5.90. An appeal was taken to the Intermediary Court by the 
defendant on the following questions of law: 

First: Has the Police Court of Honolulu jurisdiction to serve 
its summons outside of its civil jurisdiction, to wit, the district 
of Honolulu, in an action of replevin under Chapter XXXVIII., 
Laws of 1884? 



AH LEONG V8. KEE YOU. 417 

Second: Is the bond given to the Marshal in the above en- 
titled cause on the 12th day of October, A. D. 1891, as re- 
quired by Section 4, Chapter XXXVIII., Laws of 1884, legal? 

These questions were certified up by the Acting Police Jus- 
tice, C. L. Hopkins. 

This appeal was heard by Mr. Justice Dole at Chambers on 
November 6th, 1891, who held that the plea to the jurisdiction 
was good, and decided in favor of the defendant, to which de- 
cision and ruling the plaintiff noted exceptions and appealed to 
the Supreme Court in banco. The following are the points of 
law certified up: 

1st. That the certificate of appeal, although not strictly 
formal, complies with the law. 

2d. That the Police Courts have no jurisdiction to issue 
their civil process to be served outside of the district in which 
the Court is located. Hence the service of the summons in this 
case in the District of Koolau is irregular and of no effect. 

3d. That the summons being served out of the district, it 
makes the whole proceedings irregular. Hence the taking pos- 
session of the horse by the Marshal in the District of Honolulu 
was irregular. 

4th. That an appeal lies to the Supreme Court in Chambers 
on points of law from the Police Court in this case. 

In regard to the first point raised, it has been settled in our 
Courts that an appeal on points of law must be signed by the 
Justice, and the points of law appealed from reduced to writing 
and distinctly stated. The King vs. Lee Choy, 7 Hawn., 62. 
Wenner vs. Lindsay, 7 Hawn., 119. Humuula Sheep Station vs. 
Ahloj 7 Hawn., 213. Although the points of law certified up 
by the Acting Police Justice may not be couched in strictly 
formal language, yet they are in such language as to clearly in- 
form the Appellate Court of the questions of law raised. 

We therefore overrule the first exception. 

In regard to the second point raised, the limited jurisdiction 

of Police and District Courts in civil matters is so clearly fixed 

and settled by our statutes that it does not admit of argument. 

It is confined to the judicial district for which the magistrate is 
27 



418 DECEMBER, 1891 

appointed. The Lower Court was right in holding "that the 
Police Courts have no jurisdiction to issue their civil process to 
be served outside of the disk'ict in which the Court is located." 
But in this case the summons was issued in the usual way, that 
is, the defendant was to be summoned "if he can be found in 
this district" (of Honolulu) ; but he was served out of the dis- 
trict, and, consequently, the service was illegal and of no bind- 
ing effect. 

We therefore overrule the second exception. 

As to the third point. At the hearing in the Intermediary 
Court, it appeared that the horse was taken possession of by 
the Marshal in the District of Honolulu, and the receipt of the 
plaintiff shows it was delivered to him in Honolulu by the 
Marshal. 

The return of the Marshal shows that he took the horse, but 
does not say where. The return is dated, "Honolulu, October 
14, 1891;" but the fact that the horse was taken to Honolulu is 
not disputed. The return on the back of the summons shows 
that it was served on the defendant at Kaneohe, in the District 
of Koolaupoko, Island of Oahu. 

It becomes necessary to examine the Act, commonly called 
the "Replevin Act," (Chapter XXXVIII. of the Laws of 1884), 
under which the horse in question was seized. Its title is, "An 
Act to Regulate the Practice in Suits for the Recovery of Per- 
sonal Property." The first section prescribes that "the plaint- 
iff in an action to recover the possession of personal property 
may, at the time of issuing the summons or at any time before 
issue being joined in such action, claim the delivery to him of 
such property, as provided in this chapter." The statute there- 
after prescribes the steps which the plaintiff must take in order 
that the property shall be delivered to him. This process is 
entirely distinct from the summons, is served on the de- 
fendant, and before issue is joined. The summons discloses the 
plaintiff's claim of title to the property, and the object of the 
suit is to try this title. The process detailed in the Act is 
merely to enable the plaintiff to obtain immediate possession of 
the property he claims. An action of replevin, or a suit to ob- 



AH LEONG V8. KEE YOU. 419 

tain possession of personal property, may be begun without re- 
sorting to this Act of 1884, to obtain immediate possession of 
the property. And if it is resorted to, and the plaintiff obtains 
possession of the property, if the defendant does not care to dis- 
pute plaintiff's right, he may decline to join issue in the sum- 
mons, and the case may or may not be tried, at the option of 
the plaintiff. 

We find, therefore, that the seizure of the horse and delivery 
to the plaintiff was regular, but that the service of the sum- 
mons on defendant was not legal, and the Police Court did not 
acquire jurisdiction over the defendant. 

It is claimed by the plaintiff that the defendant appeared in 
the case, and thereby waived all objection to the jurisdiction; 
on the contrary, we find from the record that, at the opening of 
the case, defendant's attorneys pleaded to the jurisdiction of the 
Court on the ground of service having been made in the Dis- 
trict of Koolaupoko. This and several other motions were over- 
ruled, and finally plaintiff moved that the case be heard on its 
merits, defendant's counsel objecting to going to trial, as they 
were ready to take an appeal on points of law; but the case was 
set for hearing on its merits. It is true that defendant's attorneys 
did file a motion on October 14th, 1891, (two days before the 
first hearing of the case) to have the matter heard as soon as 
possible; but it is clear to us that defendant was compelled to 
join issue with plaintiff on the merits, but relied on his plea to 
the jurisdiction, and other motions to dismiss. We do not con- 
sider that this was such an appearance as would act as a 
waiver of the necessity of a legal service on the defendant or of 
the objection as to jurisdiction. 

In regard to the fourth point, this has been settled in Stone 
V8, Allen, 3 Hawn., 618. The Court there held that " appeals on 
points of law can be taken to a Circuit Judge at Chambers, and 
to the Intermediary Court of Oahu." Section 1005 of the Com- 
piled Laws, taken in connection with the Act ** To Abolish the 
Office of Circuit Judge of the Island of Oahu," Compiled Laws, 
page 255, and also Chapter 26, Laws of 1884, gives this right of 
appeal. We therefore overrule this last exception. 



420 DECEMBER, 1891. 

The judgment of the Court is, that the case is remitted to the 
Police Court in order that the summons may be legally served 
upon defendant, and thereafter tried. If this cannot be done by 
reason of defendant's living out of the district of Honolulu, then 
the defendant may, at his option, bring an action to recover 
possession of the horse. We suggest that the delay in this case 
would have been obviated if the plaintiff had taken out a new 
summons, and had it served on the defendant while he was 
within the jurisdiction of the Police Court of Honolulu. 

Meanwhile, the plaintiff having obtained the legal possession 
of the horse, it must remain with him until otherwise ordered 
by a competent court. If the defendant disputes the right of 
the plaintiff to the horse he can easily put himself where the 
summons from the Police Court can be legally served on him, 
or he can accept service thereof and go to trial again. 

Plaintiff must pay costs. 

/. A, Magoon, for plaintiff. 

E. Johnson, J, K, Barenaha and /. K, Kaulia, for defendant. 



L. AHLO V8. HENRY SMITH et al 

Mandamus. 
Hearing, January 27, 1892. Decision, January 28, 1892. 

JuDD, C.J., Bickerton and Dole, JJ. McCully, J., Absent. 

The Oonstitntion substitutes the race status of Hawaiian, American or 
European birth or descent as a condition for the yotin^r privilege in 
place of the status of citizenship, which was a requirement under the 
previoas Constitution. 

A native of China, who was naturalized here, and acquired the right to 
vote under the previous Constitution, was deprived of that right by 
the promulgation of the present Constitution. 

The petitioner prays for a writ of mandamus, to be addressed 
to Henry Smith, Samuel F. Graham and George N. Shaw, In- 
spectors of Elections of the 2d Precinct of the 4th District of 



AHLO V8. SMITH. 421 

Honolulu, where the petitioner resides, directing them to cause 
his name to be entered on the list of voters for Representatives, 
which they had refused to do on the sole ground that he was of 
Chinese descent. 

An alternative writ was issued, returnable January 27th, at 
which time the respondents made answer. 

Brief op Petitioner's Counsel, A. S. Hartwell. 

The sole question is, whether the petitioner's Chinese birth 
and descent preclude him from voting. 

1. The Constitution of 1887 does not pretend to state all the 
rights and privileges of Hawaiian subjects, but, on the contrary, 
in its 79th Article expressly declares that all the laws then in 
force " shall continue and remain in full effect, until altered or 
repealed by the Legislature : such parts only excepted as are 
repugnant to this Constitution. All laws heretofore enacted, or 
that may hereafter be enacted, which are contrary to this 
Constitution, shall be null and void." 

This means that all the civil, political and legal rights of 
Hawaiian subjects are neither based on, nor do they originate 
with, the Constitution of 1887. That Constitution leaves in full 
force all the statutory provisions, including the provisions 
secured by the Constitution of 1864, which are not " repugnant " 
or " contrary " to its provisions. 

In the Constitution of 1887, the Sovereign renounced the ab- 
solute veto power, and the power of appointing Nobles and dis- 
missing Cabinets, and limited the exercise of his public acts to 
those which his Cabinet should advise'and consent to. But no 
private rights of Hawaiian subjects were destroyed. By the 
law always in force since this country had a Constitutional 
Government, no man's right can be taken from him, except by 
" due process of law." I submit, that as the petitioner had the 
right to vote under the Constitution of 1864, that right cannot 
be taken from him by any subsequent statute or Constitution, 
and that it has not been taken from him. His rights were 
clearly fixed by law: "Every foreigner, so naturalized, shall be 
entitled to all the rights, privileges and immunities of an Ha- 



422 JANUARY, 1892. 

waiian subject." Section 433, Comp. Laws. This Act was 
amended in the Acts of 1887 and 189.0, but not a word of the 
above quoted sentence is changed. 

The Constitution of 1887, in requiring voters to be " of Ha- 
waiian, American, or European birth or descent," does not refer 
to those who then had a constitutional, statutory, and vested 
right to vote. It i^ one thing to enlarge vested private rights, 
one thing to direct the manner in which they shall be exercised; 
it is another and different thing to deprive one altogether of 
such rights. That, I submit, ought not to be mferred or im- 
plied by the language used in the Constitution of 1887. 

2. This Court held, in Kekaula's Case, that as a conviction 
in 1882 for felonious cattle branding did not, under the laws 
then in force, disqualify one from voting, the disqualification 
imposed by Article 73 of the Constitution of 1887, of one "who 
shall have been convicted of felonious cattle branding," did not 
disqualify Kekaula. The language of tbe Court in that case 
was explicit in its recognition of a right to vote existing under 
the Constitution of 1864, viz.: 

"(1) The specified prescription in Article 73 of the Constitu- 
tion of 1887, making a conviction for the felonious branding a 
disqualification from civil rights, cannot be applied to instances 
of this offence committed previously to the date of this Consti- 
tution, for it would be ex post facto legislation. 

(2) If Kekaula now lies under disqualifications, it must be 
pursuant to the provisions of Article 73 of the Constitution of 
1864." 

There is nothing legally " repugnant " or '* contrary " to the 
petitioner's right in the requirement of the Constitution of 1887 
as to voters. With questions of policy this Court has nothing 
to do. It is not a question whether more Chinese shall be 
naturalized or not, but whether those who were naturalized 
voters until 1887 are not now voters. 

Opinion of the Court, by Dole, J. 

The petitioner claims the right to vote on the ground that he 
had such right previous to the present Constitution, and that 



AHLO vs. SMITH. 423 

there is nothing in this Constitution which destroys that right. 
The constitutional provision for the voting privilege limits it to 
residents of Hawaiian, American or European birth or descent. 
(Articles 69, 62). This is a radical change from the provision 
for voting in the Constitution of 1864, which limits the privi- 
lege to subjects (Article 62), and which was annulled by the 
promulgation of the present Constitution, which substituted the 
race requirement for the old condition of citizenship. (Pream- 
ble of the Constitution.) But Section 432 of the Civil Code pro- 
vides that every naturalized foreigner shall be entitled to the 
rights, privileges and immunities of a Hawaiian subject. This 
antedates the present Constitution. But what are the rights of 
the Hawaiian subject as to voting? Are they not so merged 
into the new provisions that now he votes — not as a Hawaiian 
subject at all, but solely as a resident Hawaiian, American or 
European by birth or descent? If this may be answered in the 
affirmative, as we think it may, the 432d Section of the Civil 
Code stands untouched by the Constitution, and the petitioner, 
by virtue of his naturalization, is entitled to the rights, privi- 
leges and immunities of a Hawaiian subject, but voting is not 
one of them, unless the additional race condition exists. 

A Constitution which abrogates the previous fundamental 
law necessarily repeals all existing statutes inconsistent with 
itself. It may even be said that it repeals all statute law 
existing at the time of its promulgation ; whence the necessity 
of re-enacting all such laws as are not repugnant to it. (Const. 
Art. 79). When such a Constitution takes effect, it is a new 
departure in the government of the country, inasmuch as it 
states anew the principles upon which the government is to be 
administered, and rearranges the distributions and limitations 
of sovereign powers. What is not changed is re-affirmed. The 
new statement of the fundamental law takes the place of the 
old. 

Under this change of voting condition, from citizenship to 
race status, the plaintiff has lost his privilege, whether intention- 
ally or not it does not concern this issue, though, upon general 
principles, it is to be regretted. The voting right is a privilege 



424 JANUARY, 1892. 

rather than a right, and a duty rather than a privilege. Even 
if it is regarded as a right, the loss of it through the promulga- 
tion of a new Constitution is hy " due process of law" of the 
most pronounced character. 

The plaintiflfs counsel refers in his brief to the Opinion of the 
Justices of the Supreme Court, in reply to questions addressed 
them by the Cabinet in regard to the voting qualifications of 
one Kekaula, who had been convicted of felonious branding of 
cattle in 1882, in support of his position in this case. It seems 
to us that that opinion is based upon different principles than 
are raised in this case. The circumstances were also different. 

Kekaula had been convicted of an offense, under the old Con- 
stitution, which did not deprive him of his civil rights, as it 
would have done under the present Constitution, which found 
him in the enjoyment of these rights. The Justices consider 
that the provision of Article 73 of the Constitution, which 
deprives one who "shall have been convicted of" felonious 
branding of cattle of his civil rights, did not apply to Kekaula 
for two reasons, i.e.y because the language " shall have been con- 
victed" denotes future convictions, and because the deprivation 
of civil rights by the present constitutional enactment for a 
previous offense, committed under laws which did not deprive 
the offender of civil rights, would distinctly characterize it a« 
ex post facto legislation, and a construction involving such a 
result should not be adopted, even of a constitutional provision, 
unless the words distinctly require it, as they do not in that 
case. (See said Opinion, post, Appendix.) 

We do not therefore see that that case is a precedent or a 
guide in any way to this. 

We find that the petitioner is not entitled to vote, his pre- 
vious right having been annulled by the Constitution, and 
therefore dismiss the complaint. 

A. S. Hartwellj for the petitioner. 

Attorney- General Whiting, for the respondents. 



CHONG CHUM vs. KOHALA SUGAR CO. 425 

CHONG CHUM vs. KOHALA SUGAR COMPANY. 

■ 

Appeal From Dole, J. 
Hearing, February 2, 1892. Decision, February 26, 1892. 

JUDD, C.J., McCULLY, BiCKERTON, DoLE, JJ. 

In order to the binding effect of conditions and restrictions to be imposed 
upon immigrants (tiom countries with which we have no treaty to the 
contrary), upon which they may be allowed to enter this Kingdom, 
the immigrants must have knowledge of them before they come to 
this Kingdom. Subdivision 4 of Section 1 of Chapter 67 of the Laws 
of 1890, held to be unconstitutional. 

Decision of Dole, J., Appealed From. 

The plaintiff is one of the Chinese immigrants who came to 
Mahukona, Island of Hawaii, on the ship Pactolus last July, 
and were landed there under the provisions of "-An Act to 
authorize the introduction of Chinese agricultural laborers, and 
to amend Chapter 28 of the Laws of 1887, entitled, * An Act to 
regulate Chinese immigration.' " 

After argument the bill was amended by plaintiff, the defend- 
ant consenting that the amendment be filed, subject to the 
demurrer. 

The bill as amended complains that in May last the plaintiff, 
then a native and resident of China, was engaged by L. Aseu, 
an agent for the defendant, and his sub-agents, to come to this 
country and work on a sugar plantation for fifteen dollars a 
month, which wages were promised him by the said agents of 
the defendant ; that under the inducemisnt of such promise he 
came to this country with others of his countrymen ; that prior 
to his leaving China the defendant procured for him a permit to 
enter and reside within this Kingdom upon the terms and con- 
ditions therein set forth, one of which was to the effect that one- 
fourth of the wages to be earned by him should be retained by 
his employer and forwarded to the Board of Immigration until 
seventy-five dollars should have been so accumulated, to be 



426 FEBRUARY, 1892. 

returned by the said Board to him upon his leaving the King- 
dom ; that upon arriving and anchoring in the port of Mahu- 
kona, he was informed by the defendant and its agents that he 
must execute a written contract with the defendant, to serve it 
as a plantation laborer for a term of three years at wages of 
fifteen dollars a month, but to allow the defendant to retain 
three dollars and seventy-five cents a month out of such wages 
until the aggregate sum of seventy-five dollars should have been 
so retained, and to remit the same to the Board of Immigration for 
the purpose of paying the plaintiff's return passage to his native 
country at the end of said term, and also should by the said 
contract agree to such other stipulations as are mentioned in 
Chapter 67 of the Laws of 1890 relating to Chinese agricultural 
laborers, the defendant claiming that the plaintiff was bound by 
the said condition of the said permit, and that the defendant 
was thereby authorized to retain the said sum out of the plain- 
tiff's wages as aforesaid. The plain tifi* further complains that 
he was at 'the same time informed by the defendant and it« 
agents and by the Sheriff of Hawaii, that unless he should 
execute such contract he would not be allowed to land, but 
would be sent back to China ; that the said ship was not pro- 
visioned for such return voyage, and he was informed by the 
said L. Aseu, and believed, that if he should be sent to sea on the 
said ship he would suffer, and perhaps die, for want of food and 
water, and by reason of such information and belief he executed 
such written contract, but under protest ; that prior to the 
execution thereof, he had neither done nor agreed to do, nor 
authorized any one on his behalf to do or agree to do, anything 
whereby he could or should forfeit the rights secured by the 
Constitution and Laws of the Hawaiian Islands to all persons 
within the Kingdom, and that the said requirement of the said 
permit is unconstitutional and void, and that the said state- 
ments made to him as aforesaid on board the said ship as to the 
necessity of his execution of such contract, and the consequences 
which would ensue upon his refusal, were not authorized by the 
Hawaiian Constitution and laws, nor by any act or default on 
his part, and that by reason of the premises he was misled and 



CHONG CHUM vs. KOHALA SUGAR CO. 427 

deceived into leaving China and coming to this country, and 
the contract induced and made as aforesaid is void and of no 
effect, and should be so decreed. The bill further suggests that 
if it should appear that the defendant is not responsible for any 
of the said misrepresentations, concealments or statements, the 
contract must be deemed to have been induced and made under 
a mutual mistake of material facts and of the constitutional and 
legal rights and liabilities of the plaintiff, and ought therefore 
to be rectified so as to cause it to conform to the agreement under 
which he left China, by striking out the said stipulations, of the 
nature of which he was only informed after his arrival in the 
Hawaiian Islands. 

The prayer of the bill is for a decree declaring the said require- 
ment of the permit of entry and residence to be unconstitu- 
tional and void, and enjoining the defendant from further reten- 
tion of the plaintiff's wages, either by virtue of the requirement 
of the permit or of the said written contract, and from enforc- 
ing the same, and for payment of the moneys already retained 
by the defendant from plaintiff's wages, and also declaring the 
said written contract to be void, or, as alternative relief, that the 
Court find that the same was made under a mutual mistake as 
to the said stipulations, and decree that it be rectified accord- 
ingly, and for general relief. 

The bill was demurred to on the following grounds : 1. 
Whether or not complainant is entitled to relief, inasmuch as 
the grounds of complaint are covered by Chapter 67 of the Laws 
of 1890 relative to the introduction of Chinese laborers, raising 
the question of the validity of the same under the Constitution. 
2. The conditions of the contract, that the laborer shall return 
and as to deduction of wages, do not constitute duress on the 
part of the defendant, if covered by the terms of the Act of 
1890. 

The provisions of the Act of 1890 referred to, and which are 
inserted in full in the said permit and contract, as a part of 

their stipulation, are as follows : 

1. That the Chinese laborer who presents this special resi- 
dence permit for entry into this Kingdom, shall remain therein 
for a term not exceeding years. 



428 FEBRUARY, 1892. 

2. That such Chinese laborer shall not engage in any other 
occupation than that of agricultural laborer, provided that the 
term *' agricultural labor" shall be held to include labor in sugar 
mills, rice mills, and coffee mills, and all labor incident thereto, 
during his residence in this Kingdom. 

3. That if such Chinese laborer shall be found out of em- 
ployment at any time during the term of his residence in this 
Kingdom, or be engaged in any other employment than that of 
agricultural laborer, or shall be found in this Kingdom after the 
expiration of the term of his residence granted by this permit, 
he may thereupon be arrested and held in custody until an op- 
portunity occurs to return him to China. 

4. That one-fourth of the money due to such Chinese laborer 
as compensation for work done shall be retained by the em- 
ployer each month and forwarded by him to the Board of Im- 
migration, to be by it deposited in the Treasury of the King- 
dom as a special deposit, subject to the order of the President of 
the Board of Immigration, and to be returned by the said Board 
to such Chinese laborer upon his leaving the Kingdom ; pro- 
vided, however, that such detention and deposit shall cease, 
whenever the sum to the credit of such laborer shall amount to 
the sum of seventy-five dollars. The said Board shall have the 
authority to pay the return passage of such Chinese laborer out 
of such sum so deposited. If such Chinese laborer shall enter 
into any other employment than that of agricultural laborer, or 
shall desert his employer, such money so deposited may be for- 
feited to the Hawaiian Government. 

5. That the said Chinese laborer shall not be entitled to ex- 
ercise the rights of an Hawaiian citizen as to the term of resi- 
dence or employment while in the Hawaiian Kingdom, but 
shall be restricted to the term of residence and employment 
named in this permit. 

6. That the said Chinese laborer shall, during the whole 
term of his residence in this Kingdom, be subject to all the rules 
and regulations of the Board of Immigration now or hereafter 
to be made. 

Section 4. The presentation of such a permit by any person 



CHONG CHUM v%. KOHALA SUGAR CO. 429 

for admission into this Kingdom shall be held to be a consent 
by such person to all of its terms, and shall prevent him or any 
person on his behalf from denying the validity of the same in 
any manner whatsoever in any court of justice. 

Section 5. Any laborer deserting or leaving or refusing to 
do the work of the employer shall, besides the provisions of sub- 
division 3 of section 1, be also subject to the penalties prescribed 
by law for desertion or refusal to work. 

The central point of the controversy raised by the bill and 
demurrer is the question whether, under all the circumstances, 
the retention by the defendant of the plaintiff's wages, as stated, 
is legal. The permit more than authorizes it, it compels it, 
and the law enacts that the presentation of such a permit for 
admission into Hawaiian territory shall be considered to be a 
consent by the holder thereof to all its terms. The plaintiff by 
his written contract agrees to such retention of his wages, and 
the statute of 1890 requires it. Clearly the issue is narrowed 
down to the question as to the constitutionality of the provision 
of law requiring this action on the part of the employer, which 
is the sole authority for the insertion of the condition in the 
permit and contract. The cancellation or reformation of the 
contract alone would not remedy the matter, for the plaintiff 
would still be subject to the retention of his wages under the 
terms of the permit, and the wages already retained would con- 
tinue to be withheld under the same authority, while, if he 
should be entirely freed from his contract, he is still required 
by the permit to keep employed in agricultural labor, subject to 
the alternative of arrest, imprisonment and deportation to 
China if found out of such employment; in which case the 
funds already accumulated out of his wages would be appropri- 
ated, regardless of his wish in the matter, to the expenses of 
such deportation, or forfeited. 

The object of this retention of wages, as set forth in the stat- 
ute and re-affirmed in the permit and contract, was the creation 
of a special deposit to be returned to the plaintiff only upon 
his leaving the Kingdom. It is necessary, therefore, to consider 
as a part of this provision, the condition relating to his leaving 



430 FEBRUARY, 1892. 

the Kingdom; it is condition third of the above stipulation, in 
which we find that the plaintiff consjBnts that if he shall be 
found out of employment during the term of his residence in 
this Kingdom, or shall be engaged in any other employment 
than that of agricultural laborer, or shall be found in the King- 
dom after the expiration of his term of residence, he may be 
arrested and held in custody until an opportunity occurs to re- 
turn him to China; and condition fourth provides the addi- 
tional penalty for working in other employments than that of 
agricultural laborer, of forfeiture of his special deposit; this, of 
course, the plaintiff also consented to by accepting the permit. 

Further examination of the statute in question shows a pro- 
vision in Section 13, whereby persons admitted into the King- 
dom under this Act who transgress the conditions already con- 
sidered and several other regulations shall be guilty of a mis- 
demeanor and be subject to fine, imprisonment, and deportation 
to China. 

It therefore appears that, under the system established by this 
statute, a person within the territorial jurisdiction of the King- 
dom {Rex V8. Parish, 1 Hawn., 58), and therefore subject to our 
laws, (Civil Code, Section 6) and consequently in whom the in- 
alienable rights recognized by the Constitution as belonging to 
" all men," (Art. 1) have already vested, may, by contract with 
the Government, waive certain of these "inalienable rights," 
authorize the Government to arrest, imprison and deport him 
in case of any assumption of such rights, and to keep back a 
certain part of his wages for the expenses of such deportation, 
or of his obedient but compelled return to his native land at 
the end of his agreed term of residence without process, and 
further authorize the government to confiscate such fund in 
case of his assumption of the inalienable right of acquiring prop- 
erty, to-wit, if he shall enter any other employment than that 
of agricultural laborer. In other words, the Government ob 
tains its authority for making the exercise of one's inalienable 
rights a misdemeanor and punishing it as such, and for confis- 
cating his property for such exercise, without legal proceedings, 
from the individual himself; such action being otherwise ob- 



CHONG CHUM vs, KOHALA SUGAR CO. 431 

viouflly objectionable and illegal as inconsistent with the con- 
stitutional guarantee of inalienable rights, and as tending to class 
legislation. 

Can an individual confer any valid authority upon the Gov- 
ernment or other persons to deprive him of liberty or the free- 
dom of acquiring property, through thie stipulations of a con- 
tract? This question may be answered by asking another: 
Can an individual confer any valid authority upon another 
by contract to deprive him of life? This, I understand, is al- 
lowable in China, but clearly it would not be legal here with- 
out an amendment to the Constitution. 

The rights of life, liberty, acquiring, possessing and protect- 
ing property, and of pursuing and obtaining safety and happi- 
ness, belong to all men within the limits of Hawaiian territory, 
and cannot be relinquished or the control thereof assigned to 
others by contract. 

I find, therefore, that the regulations of Chapter 67 of the Laws 
of 1890, above set forth, and all other provisions of the said 
chapter requiring the assent of the plaintiff to the terms of the 
said permit as a condition of landing from the said ship Pacto- 
lus, lying at the port of Mahukona, as aforesaid, are inconsistent 
with his constitutional rights, and did not authorize his deten- 
tion on board the said ship, and the other circumstances com- 
plained of whereby he was compelled to accept the condition 
of the said permit and execute the said contract. 

This action on the part of the agents of the Government and 
of the defendant, being unauthorized, the circumstances under 
which the plaintiff signed the contract constituted such an in- 
terruption of his free agency as to entitle him to relief, if the 
statements of his bill are sustained. 

The demurrer is therefore overruled. 

Opinion of the Full Court, by Judd, C.J. 

It seems to us that the vice of the whole transaction now be- 
fore us lies in the fact that the ^' special residence permit" was 
not tendered to the plaintiff in China before he started on his 
voyage to this Kingdom. He had no opportunity of informing 



432 FEBRUARY, 1892. 

himself of the conditions upon which he would be allowed to 
proceed to Hawaii, and of consenting to them or of refusing to 
proceed under them. The passport which contained the condi- 
tions upon which he was to be permitted to enter this Kingdom 
was obtained for plaintiff in Honolulu, and his name inserted 
therein on his arrival at Mahukona, Hawaii, at the time of its 
presentation to the Customs Officer for his entry into this King- 
dom. This was allowed by the Act of 1890, Chapter 67, Section 
3. But in our opinion it haB defeated itself. While adhering 
to the opinion expressed by the Justices of the Supreme Court to 
the Legislature on the 5th of November, 1890, that this King- 
dom has the right to impose such conditions and restrictions 
upon the entry of aliens (with whose nation this Kingdom has 
no treaty to the contrary) into the territory of this Kingdom 
as the Legislature deems essential to the welfare, peace and 
safety of this state, it is vital to the binding effect of these con- 
ditions upon the alien immigrant that he should have notice of 
them before he starts on his voyage to this Kingdom. We are 
still of the opinion that it would be no infraction of the Consti- 
tution to impose conditions as to length of residence and char- 
acter of the employment in which the immigrant can engage, to 
which he must assent before being permitted to enter this King- 
dom. (See said Opinion, post, Appendix.) 

It seems to be admitted that the character of the employment 
was known and consented to by the plaintiff in this case, and 
that he was to labor under contract for three years. But the 
conditions in the 4th subdivision of the first section of the Act 
of 1890, as to retention of one-fourth of the wages of the immi- 
grant, to be deposited in the treasury until it reaches the sum of 
seventy-five dollars, as a fund from which to defray the immi- 
grant's passage back to China, etc., is in our opinion unconsti- 
tutional, as interfering with the liberty of the person and his 
right of enjoying and possessing property, and is not within the 
police power of the state. It may be said that it is the means 
by which the state secures the departure from the Kingdom of 
the immigrant after the term of his permitted residence has 
expired. 



CHONG CHUM vs. KOHALA SUGAR CO. 433 

But if the continuance of the individual in this Kingdom 
after the specified term is considered by the Legislature to be 
obnoxious and dangerous to the state, it must provide the means 
of his deportation. It would be an unwarrantable interference 
with the right of the individual to make him pay an arbitrary 
sum from his own wages to get him out of the country into 
'which he has been invited, he having done nothing criminal 
meanwhile. 

But we base our assent to the decree in this case on the posi- 
tion that the plaintiff has come to this country without the 
provisions as to deduction of wages, as a condition of his entry 
within, having been made known to him, and therefore they are 
not binding upon him. And if not binding upon him, he is 
therefore free from this obligation of the contract made under it. 
This condition is separable from the other parts of the Act, 
and it does not become necessary now to pass upon the consti- 
tutionality of the whole Act. 

It is noticeable that the matter of retention of wages of the 
immigrant, as prescribed by the fourth subdivision of the Act of 
1890, was not made the subject of inquiry by the Legislature to 
this Court. 

Decree affirmed, and demurrer overruled. 

A. S. Hartwelly for plaintiff. 

ir. R, Castle and F. M, Hatch, for defendant. 



I agree with the conclusions of the Court, under the reason- 
ing of the decision appealed from. 

Sanford B. Dole. 
28 



434 MARCH, 1892. 



THE QUEEN vs, LUI SELF. 

Exceptions. 

Hearing, March 7, 1892. Decision, March 15, 1892. 

JuDD, C.J., Bickerton and Dole, JJ. McCully, J., Absent. 

An objection to the oompetenoy of a juror, when oTearmled, most be ex- 
cepted to in order to be of ayail to the defendant. 

A Bepreeentative was summoned as a talesman in a criminal case: Article 
20 of the Constitution forbids the appointment of a member of the 
Legislature, during the time for which he is elected, to any civil office 
under the Gk>yemment: 

Held, the summoning of a person to serve as a juror is not his appoint- 
ment to a civil office under the Government. 

Opinion op the Court, by Judd, C.J. 

At the last October Term of the Court, the defendant was 
tried and convicted, on appeal before a jury, of the offense of 
assisting in the management of a lottery. The panel being ex- 
hausted, a bystander, L. W. P. Kanealii, was summoned to 
serve on the jury as a talesman. On taking his seat, be stated 
that he was a Representative for Wailuku, Island of Maui. 
The Court thought he was not thereby disqualified, and he was 
sworn without objection by the defendant's counsel. No ex- 
ception was taken to the Court's allowing him to sit as a juror. 

On the rendition of the verdict, the defendant's counsel 
moved to set aside the verdict and grant a new trial, on the 
ground that the juror Kanealii was disqualified under Article 
20 of the Constitution, he being a member of the Legislature. 

We are of the opinion that this objection, in order to be of 
any avail to the defendant, should have been made the subject 
of an exception. But as the question is important to be de- 
cided, we shall consider it. 



THE QUEEN ve. SELF. 435 

The last part of Article 20 of the Constitution reads: **And 
no member of the Legislature shall, during the time for which 
he is elected, be appointed to any civil office under the Govern- 
ment, except that of a member of the Cabinet." 

The only limitations to the summoning of persons to do jury 
duty are that they must be "suitable persons," being residents, 
not postmasters or firemen. In our practice, Government em- 
ployees, professional men and foreign consuls are also ordina- 
rily exempted. It is not essential that jurymen, if foreigners 
or of foreign birth or parentage, be naturalized. But in order 
to hold an office of profit or emolument under the Government, 
the person must take the oath of allegiance. Act of 1874, 
Compiled Laws, p. 106. This legislative construction, that em- 
ployment as a juror is not the holding of an "office of profit or 
emolument," has weight with us. Such service is not strictly 
an "office," though we may speak of the "office" of a juryman, 
meaning his function as such. It is not an office, because it is 
a temporary employment from which the person is relieved as 
soon as the duty is performed. The duty to serve as a juryman 
is an obligation to the community in which he resides, and his 
consent to serve is not essential. His position as a juryman is 
not the result of a contract, as is the case with ordinary ap- 
pointments to office. Moreover, the summoning of a member 
of the Legislature to serve as a juror is not within the evils 
which the 20th Article of the Constitution was intended to cure. 
We cannot imagine that the employment of a person to act as 
a juror could ever be considered as a reward for subserviency 
to the Government in the Legislature. Furthermore, we have 
no means of knowing whether the juror in question was one of 
the nine who voted for the conviction of the defendant or not. 

We therefore hold that the summoning of a member of the 
Legislature to serve as a juror is not the appointment of such 
person to a civil office under the Government, and is not pro- 
hibited by Article 20 of the Constitution. The exceptions are 
dismissed, and new trial refused. 

« 

Deputy Attomey-Oeneral CreightaUj for the Crown. 
/. L. KatUukoUj for defendant. 



43G MARCH, 1892. 



M. VIERRA, Jr., vs. J. F. HACKFELD, Assignee in Bank- 
ruptcy of M. Vierra. 

Writ of Error. 

Hearing, March 7, 1892. Decision, April 2, 1892. 
judd, c.j., bickerton and dole, jj. mccully, j., absent. 

It is not error to omit, in a bill to set aside a voluntary conveyance on the 
ground that it was made by a person who is insolvent, with intent to 
defraud existing creditors, allegations that the grantee had knowl- 
edge of the fraud or the insolvency of the grantor. Nor is it error 
to omit to allege the want of a good consideration, where the bill dis- 
closes the actual consideration. 

Only errors of law apparent on the record are reviewable on error. 

Opinion of the Court, by Judd, C.J. 

A bill in equity to set aside an assignment of a lease wa« 
heard and decided by Mr. Justice Dole on the 8th of October, 
1891. The decree was filed on the 12th of October. No appeal 
was taken therefrom. On the 10th of November the defendant 
(plaintiff in error), M. Vierra, Jr., filed with the Clerk of the 
Supreme Court his reasons for deeming himself aggrieved, as- 
signing the causes of error in said decision. The steps required 
by the statute were taken, and the writ of error issued by the 
Clerk. 

The assignments of error are as follows: 

1. That the complaint herein does not justify the decree in 
point of law, in tliat it does not allege any knowledge on the 
part of said M. Vierra, Jr., of fraud or bankruptcy on the part 
of assignor of said conveyance, or any knowledge of facts or cir- 
cumstances from which the inference of fraud or bankruptcy 
should be reasonably suspected by said M. Vierra, Jr. 



VIERRA V8, HACKFELD. 437 

2. That the proofs do not show that said M. Vierra, Jr., had 
any reasonable cause to suspect that his assignor in said con- 
veyance was insolvent, or contemplating insolvency or bank- 
ruptcy, when the assignment took place. 

3. That the said assignment was not a fraudulent convey- 
ance under our bankrupt law, or under any law in operation in 
this Kingdom. 

4. That the decision and findings of the Court were predi- 
cated, in part, upon evidence not legally admissible in the 
cause. 

5. That the decision and findings of the Court on matters 
of fact were not justified by the evidence adduced. There is no 
evidence to support conclusions of fact in said decision and 
findings. 

6. There is no allegation in the bill of complaint herein of 
the lack of a good and valid consideration for the assignment. 

7. That upon the evidence the conclusion of law that the 
consideration for said assignment was not a "good" considera- 
tion is an error in law. 

8. The decree is not supported in the prayer of the com- 
plainant, either as contained in the bill of complaint or at 
the bar of the Court. 

To this J F. Hackfeld, assignee, now defendant in error, de- 
murred, as follows: 

1. That assignments Ist, 6th and 8th are of points not taken 
before the Court below, and cannot now be set up. 

2. That assignments 2d, 3d, 4th, oth and 7th are upon ques- 
tions of fact, and not reviewable upon proceedings in error. 

By the Court. 

We do not find error here. The first, sixth and eighth as- 
signments of error allege deficiencies in the bill of complaint. 
If they were real deficiencies they were grounds of demurrer to 
the bill. But we do not consider that, when a voluntary con- 
veyance of property is attacked because made by a person who 
is insolvent and with intent to defraud his existing creditors, it 
is necessary to allege the grantee's knowledge of fraud or the 



438 MARCH, 1892. 

insolvency of the grantor. Nor is it necessary to allege a want 
of a good consideration for the assignment where the actual 
consideration, the sum of one dollar, was, as in this bill, alleged. 
The only grantees who are protected by the 14th section of the 
bankruptcy law are bona fide purchasers for a good considera- 
tion, having no cause to believe the grantor to be insolvent or 
bankrupt, or in contemplation of insolvency or bankruptcy. 
The grantee in this case (plaintiff in error) is not in this class. 

The remaining assignments of error, to wit, the second, third, 
fourth, fifth and sixth, are upon questions of fact. These ques- 
tions of admissibility of evidence, of competency or conclusive- 
ness of evidence, are not findings of law apparent on the record, 
and are, therefore, not reviewable in error. Akin V8. Widemannj 
7 Hawn., 334. 

We held in Peacock vs. Lovejoy, 5 Hawn., 232, that "a writ of 
error brings up only errors of law which appear on the record 
sent up, and must be granted before execution is collected, 
while an appeal may consider errors of fact as well as of law. 
The writ gives time to discover errors of law which the hurry 
incident to an appeal may have caused to be overlooked. The 
different remedies seem wise and consistent." 

We therefore discharge the writ and affirm the decree made, 
with costs. 

Aahford & Aahford, for plaintiff in error. 

F. M. Hatch, for defendant in error. 



AHLO V8. HAYSELDEN. 439 



L. AHLO V8. T. J. HAYSELDEN et al 

Appeal from Dole J. 

Hearing, March 7, 1892. Decision, April 2, 1892. 

JUDD, C.J., BiCKERTON AND DoLE, JJ. 

All the partnerfibip property being sold to a third party by the two part- 
ners, the pnrohaser assuming all the firm debts ; 

Held, that it operated as a dissolution of the partnership. 

It was ascertained, at the time of the sale, that defendant was indebted to 
plaintiff. Six years having elapsed smoe the date of the sale of the 
partnership property, and no new transactions having taken place 
between the partners within six years ; 

Held, that the statute of limitations has run against the plaintiff. 

Decision of Dole, J., Appealed From. 

The parties were partners in a sugar plantation, and sold out 
on the 27th of November, 1883, since which time they have had 
no dealings with each other. 

As the consideration of the sale, the purchaser assumed the 
debts of the firm and a private debt of the defendant of $1,323.87 
to himself. The plaintiff now claims this from the defendant. 
He also claims $301.27 for moneys overdrawn from the partner- 
ship fund by the defendant, and an item of $16 on account of 
some error in the book-keeping. There is no dispute as to the 
accuracy of these figures; but the defendant, under his plea of the 
Statute of Limitations, contends that these claims accrued, if 
they have accrued at all, at or before the sale of the plantation 
on the 27th November, 1883, and that they are consequently 
outlawed, more than six years having elapsed since that time 
before this action was brought. The plaintiff *s counsel claims 
that the parties having been partners, and there having been no 
settlement of the partnership accounts, the Statute of Limita- 
tions has not begun to run. 



440 ^ MARCH, 1892 

I think that these chiims must be deemed to have accrued at 
the sale of the plantation. The books had been delivered by 
the defendant to the plaintiff. These claims were then ascer- 
tainable from the books and from the terms of the sale. No fur- 
ther items of account have been entered between the parties. The 
business was sold out and the partnership was at an end, except 
as it might be considered as open for the settlement and pay- 
ment of their accounts between themselves, their debts to others 
having been disposed of by their sale. Proceedings for such 
settlement should have been brought within six years there- 
after. "' Actions for the recovery of any debt founded upon any 
contract, obligation or liability," excepting judgment debts, shall 
be brought " within six years next after the cause of such action 
accrued, and not after." Civil Code, Section 1036. *^In all 
actions for debt, account or assumpsit, brought to recover any 
balance due upon a mutual, open and current account, the cause 
of action shall be deemed to have accrued from the time of the 
last item proved in such account." Civil Code, Section 1038 ; 
Barber rs. Barber, 18 Ves., 286 ; Foster vs. Hodgson^ 19 Ves., 180; 
2 Lindley on Partnership, 963. 

The defendant's plea is allowed and the bill dismissed. 

Opinion of the Full Coukt, by Bickerton, J. 

There can be no doubt but that the claim now made by the 
plaintiff accrued at the time of the sale of the plantation, and 
the amount now claimed by plaintiff was then ascertained. The 
partnership, ended then and there. All of the partnership prop- 
erty had been sold and the partnership debts assumed by the 
purchaser. The only thing remaining was the settlement or 
payment of these ascertained amounts said to be due the plain- 
tiff ; it ceased to be a partnership matter. The plaintiff's right 
of action had accrued. He might have brought suit against the 
defendant to recover the amount now claimed by him, at any 
time after November, 1883. It is not contended or claimed that 
there has been any transactions between the parties since that 
date ; the claim stands now as it did then ; it was not an open 
account. The question as to whether the purchaser assumed 



AHLO vs. HAYSELDEN 441 

the private debt of the defendant as well as the firm debts need 
not be considered on this plea of the Statute of Limitations, for 
that question cannot affect this case, if the statute has run for 
six vears and the claim is barred. 

"Where an account had been stated between two partners and 
a balance was found due to one of them from the other, and 
twenty-four years afterwards a bill was filed by the former 
against the latter for discovery and account, a plea that, accord- 
ing to plaintiff's own showing, the balance was due twenty -four 
years before the filing of the bill, and that his remedy was 
barred by the statute, was allowed. In a subsequent case, the 
defendant insisted in his answer that none of the transactions 
in respect to which the account was sought occurred within six 
years before the filing of the bill, and the bill was thereupon 
dismissed." Lindley on Partnership, p. 964, and cases there 
cited. 

" To render the lapse of the statutory period a bar to an action 
for an account by one partner against another, it must appear 
that the account has been closed for six years." Stout rs. Sea- 
brook, 30 N. J. Eq., 187, and cases there cited. 

" Where the accounts between partners have been closed for 
six years, and there has been acquiescence for that period, with- 
out fraud, the statute constitutes a bar ; but the statute affords 
no defense in a case where there has been dealings within six 
years." Todd vs. Rafferty, 30 N. J. Eq., 254 ; in the same case, 
page 257, the Court says, ** And where the accounts have been 
closed for six years, and there has been acquiescence for that 
period, unexplained by circumstances and not countervailed by 
an acknowledgment, the statute constitutes an insuperable bar," 
and cites a number of cases. 

We therefore affirm the decree sustaining the plea and dis- 
missing the bill. 

W. R. Castle, for plaintiff. 

F. M. Hatch y for defendants. 



442 MARCH, 1892. 



ALEE vs. WONG LEONG. 
Exceptions. 

Hearing, March 7, 1892. Decision, April 14, 1892. 

JUDD, C.J., BiCKERTON AND DoLE, JJ. 

To sustain an action on a debt discharged by defendant's bankruptcy, the 
promise to pay it must be express. There being evidence of such 
promises, the Court declined to set aside the verdict. 

Opinion of the Court, by Judd, C.J. 

At the last October Term of this Court a verdict was rendered 
in favor of the plaintiff for the amount claimed in the plaintiflPs 
action, which was assumpsit, to recover the amount of two prom- 
issory notes for $500 and $200, dated 16th and 17th of February, 
1888, respectively made by defendant to Sing Chong & Com- 
pany, endorsed by plaintiff, and at maturity paid by the en- 
dorser. 

The defendant plead in abatement of the action his discharge 
in bankruptcy, dated the 11th April, 1889. To this the plaintiff 
filed a replication setting up promises of the defendant to pay 
the debt, made since the discharge. The question raised by the 
. bill of exceptions is, whether the evidence on the matter set up 
in the replication sustains the verdict. We find the law to be 
that, as a discharge in bankruptcy discharges the debt, it will 
take more than a mere acknowledgment or recognition of the 
debt to create a legal obligation to pay it, but there must be an 
express promise to pay the debt. Porter vs. Porter, 31 Maine, 
170. In that case the Court held that the promise by the bank- 
rupt to give a new note, is not such a promise as will sustain an 
action upon the original debt. 

In Stark vs, Stinson, 23 N. H., 261, it was held that nothing 
less than an express promise to pay will revive a debt dis- 
charged by a decree in bankruptcy. 



ALEE V8. WONG LEONG. 443 

This or a similar instruction was given to the jury. In review- 
ing the notes of evidence sent up, we find testimony by Alee, 
plaintiff, Ing Choy and Chan Chin Sing of promises to pay 
made by the defendant, which though denied by defendant, 
were sufficient upon which the jury could base their verdict. 

We therefore overrule the exceptions. The verdict must 
stand. 

A, S, Hartwell and Ashford & A%hford^ for plaintiff. 

W, R, Castle and F, M. Hatch, for defendant. 



M. ROSE vs. G. TROUSSEAU, Administrator with Will 
Annexed of Estate of His Majesty Kalakaua. 

Exceptions. 

Hearing, March 7, 1892. Decision, May 25, 1892. 

judd, c.j., bickerton and dole, jj. 

The action was for 1;>reach of a covenant by an adoptinj^ parent that he 
would properly clothe, feed, educate and care for the minor son of the 
plaintiff as a good, faithful and prudent father should. The part of the 
charge of the Court, i.e,^ '* that if , in his opinion, the King thought it 
was proper for the boy to live with his mother, he had a right to allow 
him to do so. * * * It was a matter for the King alone to judge 
of, whether to send the boy to live with his mother or not -^ held 
erroneous, as taking away from the jury the right to pass upon the 
question whether the act was that of a ^* good, faithful and prudent 
father." 

But as the whole case shows no damages proven, the Court allows a new 
trial only to ascertain if there had been a breach of the covenant, and 
if so found, the damages to be nominal with costs. 

An instruction to the jury that ** defendant was not liable for the will- 
ful acts of the minor in not going to school," meaning that the defen- 
dant was not liable for such acts done without the knowledge or 
consent of the adopter, held not erroneous. 



444 MARCH, 1892. 

Opinion of the Court, by Judd, C.J. 

This a peculiar case. An action of covenant is brought to 
recover damages laid at $5000, by the plaintiff, the fjither of one 
Mathias B. Rose, a minor, who gave him during his minority 
in adoption to the late King. The articles of adoption are 
dated the 6th December, 1886, and they show that M. Rose 
gave " absolutely to His Majesty the King, to keep as his child, 
Mathias B. Rose, aged 15 years, in Honolulu, the minor son of 
said Moritz Rose, upon condition that His Majest}'' the King do 
treat said Mathias B. Rose as his own son in all respects, and 
l)roperly clothe, feed, educate and care for him until he shall 
have arrived of legal age." And His Majesty the King coven- 
anted with M. Rose "to care for said Mathias B. Rose in all 
respects as a good, faithful and prudent father should, and to 
properly feed, clothe, support and educate said minor until he 
shall have arrived of age." 

The complaint alleges breach of the covenant, in that the 
King, during his lifetime and during the .minority of said 
Mathias B. Rose, did not nor would care for said Mathias B. 
Rose, as a good, faithful and prudent father should, and did not 
])roperly clothe, feed, support and educate said M. B. Rose, and 
the Administrator, since the decease of the King, has not cared 
for, clothed, fed, supported and educated the said minor. 

The case was tried by a jury, who rendered a verdict for the 
defendant. The only exceptions relied upon by the plaintiff 
are to the Court's certain instructions to the jury. First, the 
Court said : " If, in his opinion, the King thought it was proper 
for the boy to live with his mother he had a right to allow him to 
do so. He was not bound to keep the boy at his own house. It 
was a matter for the King alone to judge of, whether to send the 
boy to live with his mother or not." Second : " That defend- 
ant is not liable for the willful acts of the minor in refusing to 
go to school." 

The Court charged the jury that " the first point for them to 
consider was whether there had been any breach of the agree- 
ment of adoption on the part of the King." " Has His late 



ROSE V8, TROUSSEAU. 445 

Majesty the King carried out to the best of his ability what he 
agreed to do? That will be your first consideration." The 
question of breach was thus properly left to the jury, in general 
terms. But further on in the charge the Court said : " Some- 
thing has been said in regard to the boy living with his mother. 
The King under his agreement was bound to use or exercise 
proper care over the boy, but was not bound under this contract 
to have him live in the same house with him." We can see no 
objection to the charge thus far. The Court continued : " If, 
in his opinion, as a prudent parent, he thought that the boy 
would be better off with his mother, who was married at that 
time to her present husband, if he thought it was proper for the 
boy in his judgment to live with his mother, he had the right 
to send him there. ' He was not bound, as I have said, to keep 
the boy in his house." This part of the charge would seem to 
imply that the King was not to be held responsible for any act 
respecting the boy, if in his judgment it was a wise and prudent 
thing to do, whereas the wisdom of any act, or its nature, and 
whether it constituted a breach of the agreement, should have 
been left to the jury. 

The Court here characterized the particular act in sending the 
boy to live with his mother as one which he had a right to do. 
The jury were properly the judges of this, and not the Court. 
But upon a careful review of the whole case, we do not see that 
the plaintiff could have recovered any damages, even if the 
charge had been without error. The complaint alleges a breach 
of the covenant to the damage of the plaintiff, who is the father 
of the boy adopted, and who made the agreement with the 
King. The Court properly instructed the jury that "if they be- 
lieved the contract was not kept by His Majesty, plaintiff can 
recover only such damages as he has suffered, and not damages 
which the minor has suffered, the minor having his right of 
action on his own account." 

Also, that " the value of the boy's services is not the measure 
of damages for breach of contract ;" also, " wounded feelings of 
the parent cannot be taken into consideration, nor can exem- 
plary damages be recovered." 



446 MARCH, 1892. 

Having thus eliminated from the case the right of the plain- 
tiff to recover for the injury to his feelings as a parent, on ac- 
count of the breach of the covenant of adoption, and that the 
value of the boy's services was not the measure of damages, and 
that the injury to the boy could not be recovered in this action 
by the father, we find nothing in the evidence that would have 
warranted a verdict for any damages in favor of the plaintiff. 
We find no evidence of any actual damages suffered by the 
plaintiff. If the jury had found a breach of the agreement on 
the part of the King, the verdict would have to be merely nom- 
inal with costs. 

The second ground of exceptions is that the Court charged the 
jury that ** defendant was not liable for the willful acts of the 
minor in refusing to go to school." And it is claimed that the 
willful acts of the minor do not relieve the adopting parent of 
his covenant to educate. It seems to us that the Court meant 
that the act of the minor in refusing to go to school, in so far as 
it was without the knowledge of and incapable of being prevent- 
ed by the adopting parent, he was not to be held liable for. 
The absenting of the- boy from school, if done without the know- 
ledge or consent of the adopter, would be " willful." We do not 
think the instruction^ was erroneous. 

But the form of the verdict being general for the defendant, 
we are unable to ascertain whether the jury found that there 
had been a breach of the Cf)venant or not, and therefore we will 
allow a new trial to ascertain this, and the verdict, if the jury 
shall find a breach, will be ordered to be for nominal damages 
and costs. 

A. S. Hartwell and W, 0. Smithy for plaintiff. 

F. M. Hatchy for defendant. 



HEEIA AGRICULTURAL CO. vs. HENRY. 447 



HEEIA AGRICULTURAL COMPANY, LIMITED, vs. 

WILLIAM HENRY. 

■ Appeal prom Commissioner of Water Rights. 

Hearing, March 7, 1892. Decision, May 25, 1892. 
judd, c.j., bickerton and dole, jj. 

Water for irrigration purposes was diverted by the lessee of certain kale- 
anas from the kuleanas to his other land during the continuance of 
the lease. 

Held, this user of water was not adverse to the owner of the kuleanas, and 
therefore a claim of title to the water by prescription fails. 

Opinion of the Court, by Judd, C.J. 

The plaintiff, a corporation, brought its complaint before the 
Commissioner of Private Ways and Water Rights for Koolau- 
poko, Oaha, alleging that defendant had, without right, taken 
and diverted the water to which plaintiffs land at Keaahala 
was entitled by ancient right, the water coming from springs 
in Keaahala, and entirely depriving plaintiff of its water right, 
except the water right to Apana 3 of the kuleana of Kuiaia, and 
to Apana 1 of the kuleana of Kapunaai. 

The Commissioner heard the evidence, and decided adversely 
to plaintiff, who now appeals to this Court. 

From the evidence sent up, it appears that water comes from 
a spring in the land of Keaahala, called Kahuiki, and runs in 
an ancient ditch supplying the kuleanas of Kuiaia (Apana 3) and 
of Kapunaai (Apana 1), which are also called '^Nakiana's ku- 
leana," and then ran down to lands entitled to water below 
these kuleanas, the fall being quite rapid. In 1868, Mr. Coolidge, 
the lessee of Keaahala, extended the ditch westward, and led the 
water to a reservoir. In 1874 a mill was erected, and the reser- 
voir was filled nightly, and the water run off during the day to 



448 MARCH, 1892. 

a water wheel which turned Coolidge's sugar mill. In 1879, or 
thereabouts, the use of this mill was discontinued, and it is 
claimed by defendant that the reservoir is used by plaintiff for 
general purposes of irrigation, and supplied with water from 
another source, in Heeia. Plaintiff claims that it used the 
water without disturbance until deTendant diverted it, in Sep- 
tember, .1890. Owing to the contour of the land, it would be 
impossible to turn the water back from below the reservoir to 
the kalo lands below the Nakiana kuleanas. 

We deem it to be well settled law in this Kingdom that the 
right to use water for irrigation purposes can be acquired by 
adverse and continuous use for twenty years. It is not dis- 
puted that the Nakiana kuleanas, and other kuleanas in which 
were kalo patches below these, had acquired the right to suffi- 
cient water for their needs from the Kahuiki spring. Now, to 
justify j)laintiff^s claim, it must show that it had acquired the 
right to use this water by a user adverse and continuous for 
twenty years. We find it in the evidence that Mr. Coolidge 
leased the Nakiana kuleanas when he dug the ditch, in 1868, to 
the reservoir. The inference is strong that it was the water 
which these kuleanas had acquired the right to which he led on 
through the new ditch. It is in evidence that William Henry 
is now the lessee of the Nakiana kuleanas^ that he took them 
when Coolidge's lease expired, in 1881. Henry (defendant) 
says he put the land into rice in 1885, and used the Kahuiki 
water on it, and that the plaintiff has not used this water since. 

It seems, therefore, to be clear that the plaintiff, having begun 
the use of the water in dispute as the lessee of Nakiana's kule- 
anas, its use was not adverse during the time the lease was in 
existence, and a sufficient time has not elapsed since to com- 
plete a title by prescription. We therefore sustain the judg- 
ment of the Commissioner, dismissing the complaint. 

C. Brown, for plaintiff. 

/. A, Magoon, for defendant. 



HAWN. COML. CO. m. WAIKAPU SUGAR CO. 449 



HAWAIIAN COMMERCIAL AND SUGAR CO., v%, WAI- 
KAPU SUGAR CO. 

Appeal From Judd, C.J. 
Hearing, March 7, 1892. Decision, July 1, 1892. 

Judd, C.J., Bickerton and Dole, JJ. 

A Jastioe of the Supreme Court ha8 jurisdiction in Equity, at Chambers, to 
entertain a bill for partition of real estate. Sections 852 and 1228 of 
the Civil Code are in harmony with each other. Section 852 grants 
the power to partition real estate, but, as the method of procedure is 
not prescribed, and the Statute does not exclude the general jurisdic- 
tion in Equity to partition, it still exists. 

Opinion op the Full Court. 

Having well considered this case and the arguments of coun- 
sel, we hold that a Justice of the Supreme Court has jurisdic- 
tion in Equity, at Chambers, to entertain a bill for partition of 
real estate, for we consider that the power granted in the 862d 
Section of the Civil Code, to partition real estate, is in harmony 
with the 1228th Section, providing for the bringing of proceed- 
ings in Equity to partition real estate by sworn petition, and is 
explained by the latter to be a grant of jurisdiction in Equity. 
We therefore affirm the decision appealed from, overruling the 
demurrer and adjudging the plea in abatement bad. 

Decision of Judd, C.J., Appealed From. 

This is a bill in Equity for partition of certain lands on Maui 

known as Waikapu and Pulehunui, containing, say, 15,000 acres. 

The defendant corporation not acting, Geo. W. Macfarlane, the 

owner of one-half of its stock, appeared by leave of the Court 

and filed a plea in abatement and a demurrer. 

The defendant corporation had brought an action at law against 
29 



460 MARCH, 1892. 

the plaintiff corporation to recover poBse^sion of the lands in 
question according to its title therein, and for damages resulting 
from ouster therefrom. This suit is now awaiting a hearing by 
the Court in banco on certain pleadings made. The plaintiff 
then filed its bill for partition, alleging that it and the defend- 
ant corporation are seized of and hold together as tenants in 
common, each one an undivided half of the said lands ; and 
alleging, inter alia, that the estates of both plaintiff and defend- 
ant are in fee simple, that both parties are in possession of por- 
tions of the premises ; that said premises lie between other 
tracts of land owned by the plaintiff and defendant respectively; 
denies the ouster alleged in the suit at law ; avers willingness 
to divide the land, and sets up a parol agreement for partition of 
the premises made between the grantors of plaintiff and defend- 
ant respectively, ratified by plaintifi' and defendant, and that 
plaintifi" and defendant have for a long time separately occu- 
pied different portions of the premises, each occupying the part 
nearest its own adjacent land, but without any denial of title of 
the other ; and avers that plaintiff has improved the portion 
occupied by it, by cultivation, leading water thereon and build- 
ing a railroad and other improvements, and has received profits 
of its own cultivation, and denies that it is liable therefor to 
defendant, but is ready and willing to account to the extent of 
its legal liability ; that plaintiff is informed that defendant has 
received amounts for pasturage of live stock on said premises 
and from cultivation thereof. The prayers are (1) for sum- 
mons against defendant and for an account of all rents and pro- 
fits received by it from others ; (2) that partition may be made 
of the premises ; (3) that said partition may be conformable 
to the separate occupation of each party so far as the same can 
be equitably done ; (4) that said partition may be made so that 
the improvements made by plaintiff be set off to it ; (5) that 
an account may be taken, so far as the liability to account exiets, 
and that matters in controversy between said parties relating to 
the liability to account may be settled ; (6) that the defendant 
may be enjoined from proceeding further with its action of 
ejectment, etc ; (7) for costs and other relief. 



HAWN. COML. CO, vs. WAIKAPU SUGAR CO. 461 

The demurrer is to the various .prayers for relief , and raises 
the crucial question whether there is jurisdiction in this King- 
dom to entertain matters of partition of real estate in Equity. 

It is to be remarked that, by the disclaimer of the present 
plaintiff in the ejectment suit and by the allegations in the 
present bill, the title to the land is admitted — the plaintiff and 
defendant corporations are the owners of the land, in moieties, as 
tenants in common. Both parties are desirous of a partition .; 
the matters remaining in issue are (1) in what manner the 
partition should be made, and (2) the damages. 

I am not at all convinced by the argument of defendant's coun- 
sel, that matters that are mentioned in our meagre code as 
being cognizable by Justices of the Supreme Court " at Cham- 
bers " may not also fall into one or the other of the classes into 
which the jurisdiction of Courts is divided. Section 847, with 
its amendments, may be read in this way : " The Chief Justice 
of the Supreme Court is the Chancellor, and the Associate Jus- 
tices are Vice-Chancellors of the Kingdom, and as such shall 
possess all the powers incident to those offices at common law. 
They shall have power * * * generally to hear and deter- 
mine all matters in Equity," etc. 

The jurisdiction in Equity thus conferred is of necessity " in 
Chambers." There is no jury empaneled to try the issues of 
fact. The Equity Court does not sit at stated terms. It is in 
session whenever its jurisdiction is invoked, and the Justices 
may exercise its powers while sitting in any part of the King- 
dom. 

This Section 847, and several that follow, enumerate some of 
the subjects of the jurisdiction of the Justices at Chambers. 
Section 851 confers general jurisdiction to them in all* Probate 
matters. 

Section 852 reads : " Said Justices shall have power at Cham- 
bers to admeasure dower and partition real estate." 

Article L of the Code (Comp. L. p. 391) is entitled "Of 
Equity, Admiralty and Probate matters." Under Section 1228, 
" All applications * * * for the partition and division of 
real estate shall be by sworn petition, addressed to some Court 
or Justice having jurisdiction thereof. 



452 MARCH, 1892 

In 1878 an Act was passed concerning the equity jurisdiction 
of the Supreme and Circuit Courts, reading : " In addition to 
the jurisdiction in Equity otherwise conferred, the Supreme 
Court and the Justices thereof, and also the several Circuit Courts, 
shall have original and exclusive jurisdiction of every original 
process, whether by bill, writ, petition or otherwise, in which 
relief in Equity is prayed for, except where a different provision 
is made," etc., and concluding, Section 2, *^and shall have full 
Equity jurisdiction according to the usage and practice of Courts 
of Equity in all other cases where there is not a plain, adequate 
and complete remedy at lawj " and " suits between co-partners, 
joint tenants and tenants in common and their legal represent- 
atives'' are specifically enumerated in Section 2 as one of the 
subjects of Equity jurisdiction. 

I am of the opinion that the statute of 1878 has not enlarged 
the equity jurisdiction of the Justices of the Supreme Court. 
They had full equity powers conferred upon them by section 
847. The statute of 1878 makes clear many subjects of equity 
jurisdiction which, without the jurisdiction, might be disputed. 

Now, it is undoubted that during and since the reign of 
Elizabeth courts of chancery or equity have assumed jurisdic- 
tion in partition. In consequence of the disadvantages of the 
old common law method of petition and the superiority of 
the equitable remedy, the writ of partition and the plaint 
were abolished by Statute of 3 and 4, William IV. Bispham's 
Eq., sec. 487. "Another branch of concurrent jurisdiction (in 
equity) is that of partition in cases of real estate held by joint 
tenants, t^ants in common and coparceners." 1 Story Eq. 
Juris., sec. 646. "This power of compelling partition has been 
exercised in England by chancery ever since the time of Eliza- 
beth. It may be done in chancery in several of the States, in 
most, if not all, of which there are also modes provided by stat- 
ute for causing partitions to be made." 1 Washburn, R. P., sec. 
427. "The law is firmly established that equity has jurisdic- 
tion in cases of partition. It has been recognized and acted 
upon in courts of chancery from an early period in the juris- 
prudence of that tribunal. Nor does the fact that a concurrent 



HAWN. COML. CO. vs. WAIKAPU SUGAR CO. 468 

remedy existed at common law, under the writ of partition, or 
under our statute, in the least affect such jurisdiction. It is 
but like other cases of concurrent jurisdiction between the 
courts, where litigants have a choice of the forum in which they 
will proceed. Because a partition could have been had under 
the statute in this case, it does not follow that equity was de- 
prived of its jurisdiction." Hess vs, Voss, 52 TIL, 476. "This 
bill is in the form of a bill for partition, and it may properly 
be regarded as a bill in equity. We think that such a bill may 
be well maintained. There are no negative words in the stat- 
ute providing for a partition upon petition, and the partition of 
real estate is an undoubted branch of equity jurisdiction." 
Whitten vs. Whitten, 36 N. H., 332. 

Enough has been cited to establish the proposition that 
equity has jurisdiction to partition real estate, and these au- 
thorities show that this jurisdiction may be invoked even where 
there is a special statute conferring the power and prescribing 
the procedure in detail, unless the statutory method is ex- 
pressly exclusive. In Massachusetts the Statute of Partition 
consists in all of seventy-eight sections, and preserves the com- 
mon law method by writ. And it was said in Whiting vs. 
Whiting, 15 Gray, 504, that a bill in equity for partition could 
not be maintained, because the statute provided an adequate 
and complete remedy. 

In this Kingdom the general jurisdiction in equity to parti- 
tion land clearly exists. The subject of partition of real estate 
is, as I read the statutes, expressly made subject of equity juris- 
diction. The grant of power to partition is conferred. But the 
statute goes no further, and does not particularize the proce- 
dure to be followed, or the remedies which can be applied. It 
is silent upon all these matters, and, as I must hold, intention- 
ally so, since the well recognized principles of equity governing 
partition were intended by the Legislature to be applicable. 
Since our statute on the subject has not only no method of pro- 
cedure in it, and no negative or exclusive words, the general 
jurisdiction in equity exists. 

As regards the other prayers in the bill, respecting the man- 



454 MARCH, 1892. 

ner of partition, it seems to me that they all flow from and are 
appropriate to the jurisdiction in equity. 

As regards the damages: Whether the mesne profits claimed 
by the Wailuku Sugar Company can be awarded on settling 
the account offered to be made by the plaintiff company will 
depend largely upon the settlement of the question whether 
there has been a separate occupation by agreement. If there 
has been such an occupation there would be no ouster, and no 
damages in the suit at law. The determination of this ques- 
tion should be made before the suit at law can properly be en- 
joined, for if there has been no such separate occupation and an 
ouster be proved, I see no reason why the suit at law to recover 
the alleged damages should not proceed. The injunction was 
not granted on the filing of the bill, and will not be until this 
preliminary question is settled. 

For these reasons the demurrer should be overruled. 

The plea in abatement sets up that the Waikapu Sugar Com- 
pany has never declined, and has consented to a partition of 
the premises, and asks judgment if it ought to answer the bill. 
The correspondence in support of the plea shows clearly that 
the defendant was willing to make a division of the premises, 
but not in accordance with the agreement now set up in the 
bill, which it ignores. The parties, though agreeing that a par- 
tition may be had, are not in accord as to where the lines should 
run, and that is enough to give the Court jurisdiction to hear 
the case upon the allegations and proofs. Plea adjudged bad. 
Defendant to answer. 

F, M. Hatch, for plaintiff. 

A, S. Hartwell, C, L, Carter, Thurston & Frear, for defendant. 



BOUNDARIES OF KAOHE. 456 



BOUNDARIES OF KAOHE. 

Appeal from Boundary Commissioner. 

Hearing, March 9, 1892. Decision, May 31, 1892. 

JuDD, CJ., Bickerton and Dole, JJ. 

Evidence, upon which the boundary between the Grown Land of Humu- 
ula and the Oovernment land of Kaohe was settled by the Commis- 
sioner of Boundaries for the Island of Hawaii, discussed. 

Where the oral testimony as to a boundary is conflictingf, resort may be' 
had to intrinsic evidence. Where a gulch is conceded to be a lx)und- 
ary for a portion of the line between two lands, it is a natural infer- 
ence that the main branch of the gulch continues to be the boundary 
as far as it goes. 

Where a voluntary relinquishment of a portion of a land is made by an 
owner, and it is not included in the Royal Patent for the land, the 
portion belongs to the Oovernment. 

Opinion of the Court, by Judd, C.J. 

On the 16th August, 1873, the Commissioners of Crown Lands 
made application to Hon. R. A. Lyman, Boundary Commission- 
er for the Island of Hawaii, for settlement of the boundaries of 
a number of lands belonging to the Crown situated in the Dis- 
trict of Hilo, on the Island of Hawaii, and among them was the 
land of Humuula. It appeared that Hurauula was bounded on 
the side of the mountain towards the town of Hilo (eastward) 
by a large number of lands, to wit, Waipunalei, Papaaloa, Mau- 
lua, Piha, Honohina, Hakalau, Makahanaloa, Papaikou, Pau- 
kaa and Piihonua, etc. It appeared that the Government land 
of Kaohe is on the Hamakua or western side of Humuula. The 
Commissioner took a great deal of testimony respecting the 
boundaries of all these lands'and established the boundaries of 
those last mentioned, but did not complete the settlement of 
the boundaries of Humuula. 



456 MARCH, 1892. 

After the lapse of some years, another Commissioner, Hon. P. 
S. Lyman, was appointed, and on the 14th August, 1891, the 
Hawaiian Government made application to him to ** settle the 
boundaries between the Crown Lands of Humuula and the ad- 
joining Government tract extending from Pohakuhanalei, on 
Maunaloa, to the head of Kaala in Hamakua, known principally 
as the Government land of Kaohe." 

Judge Lyman took such evidence as was presented, and on the 
3d October, 1891, made a decision establishing the boundary 
between Kaohe and Humuula, locating it by reference to known 
places, and stating that surveys were to be made and filed be- 
fore the certificates of boundaries should be issued. From this 
decision the Commissioners of Crown Lands appealed to this 
CourK It was agreed that all the evidence taken by the two 
Commissioners of Boundaries should be received bv the Court. 
In addition to this, the evidence of Mr. C. J. Lyons, of the Gov- 
ernment Survey, and of Mr. James Gay, a surveyor, and of 
John Norton, was taken before the Court. The determination 
of the boundary of Kaohe will settle the boundary of Humuula 
where these lands adjoin. 

Besides the interests of the contending parties, the Govern- 
ment and the Crown Land Commissioners, the determination of 
this boundary is a matter of public importance, as the western 
boundary of Humuula along the Kaula gulch, and thence on to 
near the summit of Maunaloa, is the division between the dis- 
tricts of Hamakua and Hilo. It is established by the evidence 
that Humuula is a Hilo land, and that Kaohe is a Hamakua 
land. From the mass of evidence taken we find that in ancient 
times the main value of the land of Kaohe was the "uwa'o," a 
sea-bird, whose habitat was the dry, rocky and elevated portion 
of the mountain. The habitat of the bird " oo," whose feathers 
were valuable, was in the mamane of Humuula, So the bird- 
catchers, retainers of the chief to whom Humuula was assigned, 
were limited to this area on which to take the " oo,'- and could 
not take the " uwa'o," for those belonged to Kaohe. 

All admit that the line where the dense forest ceased and the 
scattering mamane trees grew was the line of Humuula east- 



BOUNDARIES OF KAOHE. 457 

ward, and on the westward the line was where the mamane 
trees ceased, above the limit of vegetation. This general view 
is not controverted, and the boundary line from Pohakuhaftalei, 
on Maunaloa, to Kanakaleonui, as found by the Commissioner, is 
not seriously controverted by either party. It is agreed that 
the starting point of the western boundary of Humuula on the 
sea coast is where it joins the land of Ookala, and that the 
boundary runs along Ookala until it comes to the Kaula gulch, 
and follows this gulch up to the upper boundary of the land of 
Kaala near a place called " Lahohina," not far from **Ned Gur- 
ney's" hut. From **Lahohina" inland (southward) up to 
"Kanakaleonui" the boundary is disputed. The appellants 
claim that Kaohe on the western side ends at a hill called "lole- 
haehae," and from thence runs south to Kanakaleonui, thus 
taking into Humuula a large block of land above the woods 
bounded northward of lolehaehae by the land of Kukaiau, and 
on the makai or northerly side by the upper boundary of the 
land of Kaala close to the Government road leading from Ha- 
makua to Laumaia and Kalaieha. 

No witness goes quite to the extent thus claimed. Some, 
however, take the line from lolehaehae to PoopuqA or ** Ahua- 
poopuaa," and thence to the agreed point " Lahohina."- One 
witness, Kahue, and Waiki following him, takes this line on 
from Poopuaa seaward to a hill called Puuloa, several miles sea- 
ward, and beyond the settled upper boundary of Kaala. 

This same witness carries the line of Humuula to the ice pond 
" Waiau" on the summit of Maunakea, and enlarges on both its 
sides to dimensions far beyond those testified to by other wit- 
nesses. Mr. Wiltze's map of Humuula, made in 1862, agrees 
with this testimony in running the line from lolehaehae to Poo- 
puaa. 

On the other han(i, Simmons and others give the line as going 
from lolehaehae direct to the Kaula gulch where it enters the 
woods. Opposed to either of these views is the testimony of 
Nakupuna, said to be 100 years old, who takes Kaohe to lole- 
haehae, and says that at Waikulukulu Humuula joins Kaohe. 
This point, Waikulukulu, is a water-hole in a gulch into which 



458 MARCH, 1892. 

water drips, as it name would indicate, not far from a hill 
called ** Puukalepa." This hill is east of lolehaehae about a 
mile distant. This last testimony would take all the disputed 
territory from Humuula. 

This view is sustained by Mr. Lyon's testimony. He says 
that in 1853, when he surveyed Kaala and Kaiwiki for Hon. 
John li, who was guardian of Leleiohoku 2d, he went through 
the woods following the Kaula gulch till he struck the main 
road, and the kamaainas pointed out to him two peaks as the 
boundary of Kaala. One was lolehaehae and that he took a 
sight on, and the other was one to the east of it, whose name he 
cannot give. The inference is that it was Puukalepa. It 
could not be Poopuaa, for that is not eastward of lolehaehae. Mr 
Lyons, in obedience to Mr. li's instructions, ran the upper 
boundary of Kaala straight across just above the woods and did 
not take into Kaala the territory up to lolehaehae and Puukalepa, 
Mr. li saying that above the line of forest on the mountain the 
land belonged to the Government, and Mr. Lyons marked it 
'* Kaohe," knowing that there was a large Government land of 
that name there. 

It is significant that the neighboring lands of Kukaiau and 
Koholalele have been established as running up beyond the 
woods to a line of three tufa cones or hills, Puukea, Puuokihe 
and lolehaehae, and it would seem natural that Kaala origin- 
ally took in its share of this territory, and ran from lolehaehae 
to Puukalepa. These four hills or cones are conspicuous land- 
marks, and can be seen at a long distance. The kamaainas of 
forty years ago were less likely then to be mistaken as to the 
correct boundaries of lands than those of these days. They 
lived on the lands, pursuing their occupations under the chiefs 
of gathering feathers, canoe making and getting articles of 
various kinds from the mountains. It wafc such men that in- 
formed Mr. Lyons that the territory in question belonged to 
Kaala, and we are strongly impressed with the idea that it was 
Kaala. Now, if it was Kaala it was not Humuula, and if it was 
Kaala it is Government land, because it was voluntarily left 
out of the royal patent for Kaala, and may well be considered 



IN RE STENOGRAPHER'S CHARGES. 459 

now as a part of Kaohe. Where the testimony is conflicting 
the Court may resort to intrinsic evidence. And a strong 
feature in this case is that as Kaula gulch is admitted to be the 
boundary up to the mauka limit of Kaala, it is natural to sup- 
pose that the main branch of this gulch continued to be the 
boundary as far as it went. This will undoubtedly carry the 
boundary up beyond the line of Poopuaa and very likely as far 
as Waikulukulu. Unfortunately no one has actually traced 
the gulch to this place, but we are not made aware of any other 
course which the storm water in Waikulukulu could take sea- 
ward except down through a gulch which must come out in the 
well known part of Kaula gulch. 

The question is not easy to determine, but we think on a 
review of the whole case that the Commissioner's decision should 
be sustained on this point. The only other point in dispute is 
whether Humuula, on the slope of Maunakea, extends to Omao- 
koili hills, or only goes as far as Puhuluhulu. The Omaokoili 
hills seem to us to be clearly established as a boundary between 
Humuula and Kaohe, and we therefore affirm the decision of 
the Commissioner, and decide the line between Humuula and 
Kaohe to be as found by him in his decision of October 3d, 1891. 

W. A. Whiting y Attorney-General, for the Government. 

F. M. Hatchy for Crown Land Commissioners. 



IN THE MATTER OF STENOGRAPHER'S CHARGES 
FOR TRANSCRIBING TESTIMONY. 

Hearing, March 14, 1892. Decision, March 31, 1892. 
judd, c.j., bickerton and dole, jj. 

Opinion. 

This matter was brought before us by the request of a num- 
ber of the members of the bar that a scale of charges to be made 



460 MARCH, 1892. 

by the short-hand reporter to the members of the bar, for tran- 
scribing his short-hand notes of evidence, be established by the 
Court. 

Having heard testimony and argument, both by several 
members of the bar as well as Mr. J. W. Jones, the court re- 
porter, we have endeavored to arrive at a conclusion that would 
be fair both to litigants and to the reporter. The circumstance 
that the latter has a fair working salary, and that the station- 
ery and typewriter used by him in such work is furnished him 
by the department, has been considered by us in adopting the 
following 

Scale of Charoes. 

A folio to be one hundred words. 

For original transcripts, twelve cents a folio. 

For carbon copies to parties ordering originals, three cents a 
folio. 

For carbon copies to parties not ordering originals, six cents 
a folio. 

For reading short-hand notes, according to special arrange- 
ment with the reporter. 



CLEGHORN vs. OPIUM PILLS. 461 



A. S. CLEGHORN, Collector of Customs, vs, 500 BOTTLES 

OF OPIUM PILLS. 

Appeal From Judd, C.J. 

Hearing, March 14, 1892. Decision, May 28, 1892. 

Judd, C.J., Bickerton and Dole, JJ. 

In an invoice of Chinese goods there was found a case of pills con- 
taining opium. Held, that the said case, together with all the mer- 
chandise named in the same invoice, was forfeited and confiscated to 
the use of the Hawaiian Qovemment. 

Decision of Judd, C.J., Appealed From. 

The invoice of goods imported by Quong Sam Kee Company 
per bark Kitty from Honkgong, China, was entered at the 
Custom House in Honolulu on December 2d, 1891, by Chu 
Gem, manager of the importing firm. Chu Gem stated to the 
Deputy Collector that the pills in case No. 18 on the invoice, 
calling for ** China pills," he believed to be opium pills and 
struck them off from the invoice, the case to be surrendered to 
the Government. The case was taken by mistake to the claim- 
ant's store and by him sent to the Custom House. 

Case marked 101 was invoiced as containing **600 pieces 
China pills valued at $15, 10 pair flower shoes, $8.20, 1 piece 
ash flowers, 10 cents." This case was seized on board the ves- 
sel by the Customs officer, and on examination found to contain 
medicinal pills containing opium, and the whole invoice of 
goods, valued at $1,828.85, was seized, less what packages had 
been delivered to the importer before seizure. 

The object of this libel is to forfeit and condemn to the use 
of the Government the case of pills and the entire invoice, of 
which the pills formed a part. 



462 MARCH, 1892. 

These pills purport by their label to be a remedy for the 
opium habit. The chemist (G. W. Smith) who analyzed them 
says they contain some vegetable extracts, etc., and a small 
quantity of opium, and would produce in the taker the effect* 
of opium, in a greater or less degree, according to the quantity 
taken. The printed prescription says the dose is 20 pills for 
each " mace" of opium which the taker has been in the habit of 
using. Can these pills be said to be a " preparation of opium?" 
The chemist did not make a quantitative analysis of the pills, 
but says they respond to the test of opium. The quantity of 
opium evidently bears a small proportion to the other ingre- 
dients in the pills. And it seems to me that the compound 
could hardly be called in a strict sense a "preparation of 
opium." It would be more appropriately named after its prin- 
cipal ingredient, which is probably " ginseng." But the Legis- 
lature, in forbidding the " importation of opium or any prepara- 
tion thereof," evidently intended to exclude from this Kingdom 
any compound which contains opium and which is intended to 
be used as a narcotic. Therefore, as the use of these pills is 
within the evils sought to be prevented by the law, I hold that 
they are a " preparation of opium." 

Not only is their importation by private parties forbidden, 
but by the Act of 1886 (Section 3, Chapter 7) if they are 
" found in any ship within the limits of any part of this King- 
dom, such goods and articles, and the packages containing the 
same, and all merchandise or part of the invoice in which such 
goods and articles were imported, shall be forfeited." 

This case of pills was found in the bark Kitty at the dock in 
the harbor of Honolulu, and, by a strict construction of the 
statute, it and the invoice of which it is a part are forfeited. The 
Deputy Attorney-General contends for this construction and 
urges that the prosecution has not to show guilty knowledge or 
a fraudulent intent, to secure a forfeiture. I agree with this 
contention. But the claimant may show by the facts of the 
case that he did not intend to violate the law and Import the 
prohibited article. He shows correspondence with his agent in 
Hongkong in which he countermands the orders previously sent 



CLEGHORN vs, OPIUM PILLS. 463 

for opium pills. The letter reached China after the Kitty had 
sailed for Honolulu. He says he believed case No. 18 contained 
the prohibited pills and surrendered it to the Custom House, 
and supposed case 101 contained " common pills," not having 
opium in them. He dealt in medicines and had ordered common 
pilJs. 

A strict cons?truction of the statute would condemn the whole 
invoice on account of the presence therein of case 18, which the 
importer repudiated and delivered to the Customs. If the pro- 
hibited article was sent in an invoice, incontestably without the 
knowledge of the importer, by the construction contended for 
the innocent importer would be punished for the misdeeds of 
the guilty consignor. 

The presumption, of course, will always exist that the im- 
porter is aware of the contents of the cases in his invoice. But 
to say that this presumption cannot be repelled by evidence 
would be unjust. The proceeding for condemnation is of a 
criminal character ; a forfeiture of his goods punishes the im- 
porter as well as a fine would. The rule of law is that the 
offense must be established beyond a reasonable doubt. (7. S, 
vs. The Brig Burdett, 9 Peters, 682. 

Those pills in case 18 differ in appearance from those in case 
101. The conduct of the claimant importer throws a serious 
doubt upon the question of his knowledge that the pills in case 
101 contained opium. 

1 therefore declare forfeit case 101 and contents and release 
the rest of the invoice. The claimant to pay costs. 

I have not touched upon the alleged undervaluation of the pea- 
nut oil in the invoice, because it is not made a ground of con- 
demnation in the libel, and moreover the evidence is that $5 
in U. S. gold per case would be about the value of the article 
in Hongkong in Mexican silver. 

Opinion of the Full Court, by Bickerton, J. 

The question now before us is, should all the merchandise 
and packages described in the invoice be confiscated as well as 
case 101, or is the case containg the pills only liable to forfeiture. 



464 MAUCH, 1892. 

This proceeding is brought under Chapter 7, Section 3, of the 
Session Laws of 1886, which reads : " If any goods or articles, 
prohibited from being imported by any private persons, shall 
be found in any ship within the limits of any port of this King- 
dom, such goods and articles, and the packages containing the 
same, and all merchandise or part of the invoice in which such 
goods and articles were imported, shall be forfeited." * * 

The facts necessary to bring this case within that statute have 
been clearly shown, in fact they are practically admitted by the 
claimant. The language of this law is plain and unambiguous; 
it is peremptory ; it is only capable of one construction, viz., 
the articles (in this case opium pills) and the packages contain- 
ing the same shall be forfeited, also all the remainder of the 
merchandise in the invoice in which the articles and goods were 
imported shall also be forfeited. This is the law as we find it 
on the statute book ; we cannot legislate or vary the law. It 
may perhaps in some cases work a hardship, but the claimant 
is not without means of relief. Section 689, Compiled Laws, 
reads : " Any person who has incurred any fine, penalty or 
forfeiture, for a breach of any provision of the revenue laws, or 
is interested in any vessel, or merchandise subject to seizure, 
forfeiture, or disability, may petition the Minister of Finance, 
setting forth the circumstances of his case, and praying that the 
same may be mitigated or remitted, and the said Minister may 
mitigate or remit such fine, forfeiture or penalty, or remove 
such disability or any part thereof, and he may direct any 
prosecution for such fine, pienalty or forfeiture, to be discon- 
tinued upon such terms as he may deem reasonable." 

Under this law, if there are mitigating circumstances, as per- 
haps there are in this case, it is in the power of the Minister of 
Finance to grant what relief he may deem right and just in the 
matter ; this is left to the discretion of the Minister and not to 
the Court. The Court can only administer the law as it finds 
it. In the case of The Mary Belle Roberts, 3 Hawn., 826, the 
Court quotes the language of Judge Ware in The John C Brooks^ 
3 Ware, 273, where he says : *' To extract this case from the 
express language of the statute, it must be shown that while the 



^ 



/ 



CLEGHORN vs. OPIUM PILLS. 465 

Legislature said one thing it meant another. This may be 
shown, but it is incumbent upon him who alleges an exception 
to prove it." In the same case (The Mary Belle Roberts, ) the 
point was raised, " Can the ship, which is the property of inno- 
cent third parties, be forfeited by the unlawful proceeding of the 
master?" The Court says, '*It would be sufficient to make an- 
swer that the statute of this Kingdom expresses in language too 
plain to admit of other construction that such a penalty may be 
enforced." We can make the same answer to the question be- 
fore us in this case. Immediately the case No. 101 was found 
on the bark " Kitty " it became liable to forfeiture together with 
the merchandise named in the same invoice, and that liability 
to forfeiture cannot be removed by any prior or subsequent act, 
either of the claimant or the customs. In the case of Cleghom 
vs. Samshoo, 7 Hawn., 190, the Court says, " We all think that 
the goods having become liable to forfeiture immediately upon 
the offense, i. e., the delivery of the manifest by the Master to 
the Collector-General, being committed, no action by any officer 
of the Government could purge such forfeiture." 

We are therefore of opinion that the decision appealed from 
should be set aside and the prayer of the libel granted, forfeit- 
ing said case No. 101, together with all the merchandise and 
goods set forth in the invoice filed with the libel and marked as 
Exhibit A. And it is so ordered. 

Chas. Creighton, Deputy Attorney-General, for libellant. 

Paul NeumanUy for claimant. 
80 



466 MARCH, 1892. 



THE QUEEN vs. AH KIAO. 

Exceptions from Fourth Circuit Court. 

Hearing, March 14, 1892. Decision, April 2, 1892. 

JuDD, C.J., Bickerton and Dole, JJ. 

Tbe affidavit in support of a motion for continuance, on the ground of the 
absence of a material witness, did not set out the tiicts which the wit- 
ness would testify to: 

Held, it was no error to refuse the motion. 

Held, the granting or refusing a motion for continuance is within the dis- 
cretion of the Court, and the Appellate Court will examine into it 
only to see if the discretion has been abused. 

Opinion of the Court, by Judd, C.J. 

The defendant was indicted at the Circuit Court of the Fourth 
Judicial Circuit in February last for the offense of malicious 
assault upon a female named Hana, with intent to commit rape, 
at Hanalei, Kauai, on the 18th of May, 1891. 

The Circuit Court was convened on the 9th of February. 
The defendant took out a subpoena for a witness, Dr. Mitamura, 
on the 10th February, which was served upon him on the 11th. 
The case was called for trial on the 12th. The desired witness 
for the defense not appearing, the attorney for the defendant, 
W. 0. Smith, Esquire, moved the Court to continue the case to 
the next (August) term. The affidavit in support is as follows: 

"William 0. Smith, attorney for the defendant in the above 
entitled cause, on oath deposes and says that one Dr. Mitamura, 
residing at Papaa, Kauai, is a material witness for the defend- 
ant; that due diligence has been exercised by the defendant's 
attorney, and by the defendant himself, in the endeavor to pro- 
cure the attendance of said witness, by taking out a subpoena 
to compel his attendance, on the 10th day of the present mouth; 



THE QUEEN vs. AH KIAO. 467 

but the said witness has not appeared, and the defendant Can- 
not go to trial and properly defend himself against the charge 
for which he is indicted, in the absence of said witness." 

The Court refused the continuance, to which defendant's 
counsel excepted. The case then went to trial, and* the jury 
rendered a verdict of guilty^ to which defendant excepted and 
moved for a new trial. 

The bill of exceptions brings up the single question whether 
a new trial should be granted on the ground that the con- 
tinuance was refused. 

We find, from the affidavit of the officer who served the sub- 
poena on Dr. Mitamura, that the witness gave as his excuse for 
non-attendance, that his wife was ill and that this illness con- 
tinued up to the date of the trial. 

The defendant's counsel stated«that the doctor had given evi- 
dence on behalf of the prosecution on the 9th of June, 1891, 
upon a case against this defendant, involving the same state 
of facts, and he therefore supposed that the prosecution had 
subpoenaed the witness to attend the Circuit Court on the 9th 
of February, together with the other witnesses. He gives this 
as a reason for not issuing a subpoena earlier. We notice, how- 
ever, that Dr. Mitamura was not examined as a witness in the 
proceedings before the magistrate for commitment for the crime 
for which he was indicted. Moreover, the illness of the doc- 
tor's wife, requiring his attendance, being his excuse for non at- 
tendance, it would have existed as an excuse whether the sub- 
poena was issued on the 10th or months earlier, and in this 
view want of diligence should not weigh against the defendant. 

The objection made to the affidavit supporting the motion for 
continuance is that it does not set out the facts which the wit- 
ness would have testified to, in order that the Court might judge 
of their materiality to the issue to be tried. Howard vs. Hu- 
bertson, 1 Hawn., 45, is authority that such an affidavit 
should set out the facts the witness is expected to prove. This 
was also the opinion of Chief Justice Lee in Walker vs. Grimes, 
1 Hawn., 35, and was followed in Will of Hewahewa^ 2 Hawn., 
166, and affimed in Napahoa vs. Chinese Union, 7 Hawn., 379. 



468 MARCH, 1892. 

With so much precedent of our own, we consider the rule now 
well settled, and do not consider it necessary to examine the 
authorities cited for and against the position by counsel for the 
defense and prosecution respectively. 

The granting or refusing a motion for continuance is 
within the discretion of the Court. Kane V8. NaJcaleka, 7 
Hawn., 211. We look into the matter only so far as to ascer- 
tain whether the Court, in refusing the motion to continue, 
abused its discretion. We find it did not. The exceptions are 
therefore overruled. 

C. Creightorty Deputy Attorney-General, for prosecution. 

W. 0, Smith, for defendant. 



THE QUEEN vs. JAMES GAY. 

Appeal from Police Justice op Honolulu. 

Hearing, March 14, 1892. Decision, March 19, 1892. 

JUDD, C.J., BiCKERTON AND DoLE, JJ. 

The statute, Section 49 of the Eleotion Act of 1890, requires each candidate, 
within ten days following an election, to furnish to the Minister of the 
Interior a sworn itemized statement of his exi)enses as a oandidata 
Failure or nefi^leot to furnish such sworn statement is made a misde- 
meanor and punishable by a fine or imprisonment, or both. 

Held, the proof that no expenses were incurred by or for the oandidate is 
a complete defense, to the charge under this section, and exculpates 
him from the necessity of furnishing an "itemized statement" to the 
Minister. 

Opinion op the Court, by Judd, C.J. 

The defendant was arrested by warrant issued from the Police 
Court of Honolulu, on the charge of neglecting and failing to 
furnish to the Minister of the Interior, within ten days after the 
election of February 3rd, 1892, a sworn itemized statement of 



THE QUEEN V8. GAY. 469 

his expenses as a candidate for election, he having been a can- 
didate for election as Noble at said election. He plead not 
guilty, and after proof on the part of the prosecution that no 
sworn statement had been furnished by defendant of his ex- 
penses as a candidate, and that defendant was a candidate and 
a request had been filed for him in accordance with the statute, 
and the fee of fifty dollars paid, he testified in his own behalf as 
follows : "1 have not had one cent expenses. I paid no $50 
fee as a candidate." Cross-examination : *' I was a candidate 
at the election; don't know who paid $50 forme, or whether it 
was paid. I had no runners and made no contribution to 
campaign fund. I did not spend one cent for anything, or incur 
any obligation in regard to my being a candidate." This was 
not contradicted by any evidence. The defendant was found 
guilty and the minimum penalty of $100 fine was imposed. He 
appealed to the Supreme Court in banco on the point of law, that 
the charge being the failure to furnish a sworn statement of an 
itemized account of defendant's expenses as a candidate, and the 
proof being that defendant had incurred no expenses whatever, 
no breach of the law had been committed, and he should have 
been acquitted. 

By the Court. * 

• 

The object of the Section 49 of the Election Law is undoubt- 
edly to prevent the improper and illegal use and expenditure of 
money in the conduct of elections. This section is followed by 
a list of what are the expenses to be legally incurred by or for a 
candidate : 

1. His personal expenses as a candidate. 2. Expenses of 
printing and advertising. 3. Cost of stationery and postage. 
4. Expenses of public meetings. 5. Rent and supplies of com- 
mittee rooms not to exceed one for each polling place. 

It would hardly be anticipated that a candidate would put 
into his statement items that were clearly for objects and pur- 
poses forbidden by the law, and thus subject himself to a pros- 
ecution for a **corrupt practice." On the other hand, the denial 
under oath at the trial that money had been expended by him 



470 MARCH, 1892. 

or on his behalf, for illegal purposes, if proved to be false, would 
subject him to a prosecution for perjury. 

The manifest object of the law is to obtain a discovery of 
what money has been expended by or for a candidate. An 
honest man would not expend money for illegal purposes, and 
a dishonest man would hesitate to do so, if by that means he 
subjected himself to prosecution, either for a "corrupt practice" 
or for perjury. So the statute has a deterrent effect. Now, in 
this view, there is no sense in requiring that, in the schedule of 
expenses which may be legally incurred, the item "his personal 
expenses as a candidate" should be held to include the fee 
which is required by Section 47 of the Act to be deposited by 
him with the Minister of the Interior '*on account of the ex- 
penses attending the election, which shall be paid into the 
treasury a& a Government realization." This fee is a tax by 
which the Government is partially reimbursed for the expenses 
of election. Its payment is a condition precedent to his being 
permitted "to stand as a candidate," though he may be called a 
"candidate" for election for months before the election, and dur- 
ing the whole campaign. He is not recognized by the law as a 
candidate, and his name will not be printed on the official bal- 
lots, until this fee is paid. He does not disburse this fee after it 
is deposited. It is not applied particularly to the expenses of 
his election. The money derived from these fees goes into the 
treasury as a realization, and may exceed or be short of the 
amount appropriated for election expenses and expended by 
the Minister. It cannot be called, in the connection in which 
the term is used, a "personal expense" of a candidate. The law, 
by using the term "personal expense" in this item, intends to 
include such outlays as are incurred by reason of his candida- 
ture which are in the nature of private expenses, as, for in- 
stance, his fares while traveling, carriage hire, hotel bills, etc., 
in distinction from those enumerated in the other four classes 
of legal expenditure which cover the more general expenses of 
the election and may be for the benefit of all the candidates of 
the particular party. The object of the law requiring the state- 
ment being the obtaining of information by the Government as 



THE QUEEN vs. GAY. 471 

to what has been expended by the candidate, with a view to 
preventing improper expenditure, we may not presume that 
the Government would seek to know from the candidate that 
the fee has been paid, for it must have been paid to the party 
seeking the information. It is in the public treasury. This 
statement is, by the statute, to be *^open to inspection by any 
one without fee or reward," and this would aid the deterrent 
effect of the statute. But the payment of a tax which the law 
requires would neither interest the public, nor have any eflTect 
in preventing the improper use of money during election cam- 
paign. We therefore hold that the candidate is not obliged, un- 
der Section 49, to make a statement that he has deposited the 
statutory fee with the request for his candidature. 

Is the defendant, on the evidence, punishable for not furnish- 
ing a sworn itemized statement of his expenses? We think 
not. This is a penal enactment and must be construed strictly. 
"A penal law cannot be extended by construction. The act 
constituting the offense must be within both the letter and the 
spirit of the statute." Lair vs. Killmer, 25 N. J. L., 522. A 
failure to make a return that no expenses have been incurred 
is not punishable by the statute, no provision having been 
made for such a case. "Unless the proper meaning of the lan- 
guage of the statute brings a case within its letter, the rule of 
strict construction forbids the court to create a crime or penalty 
by construction, and requires it to avoid the same by construc- 
tion." Endlich, Interpretation of Statutes, p. 455. W. U. Tel. 
Co. vs. Axtell, 69 Ind., 199. U. S. vs. Wiltherger. 5 Wheat., 96. 

Undoubtedly, the defendant could have avoided arrest and 
prosecution if he had made a return to the Minister that he 
had incurred no expenses, and, not having done so, there was 
probable cause to believe that the statute had been violated. 
But proof that no expenses have been incurred is a complete 
defense to the prosecution. 

Appeal sustained and defendant discharged. 

C. Creightorij Deputy Attorney -General, for the Crown. 

P. Neumann, for defendant. 



472 MARCH, 1892. 



?=^ 



I • 
ESTATE OF DUNCAN McBRYDE. 

Appeal from Judd, C.J. 

Hearing, March 15, 1892. Decision, April 26, 1892. 

Judd, C.J., Bickerton and Dole, JJ. 

Executors may not turn over the performance of their trust to a business 
firm, and return the accounts of the latter into Court as their own ex- 
ecutors' accounts; nor may they have executors' commissions on such 
accounts. They should decline the trust or perform it. 

The will devised the income of the estate to the widow for life. Money 
which was due the testator in his lifetime, upon being received by the 
estate, is not income, but capital, and must be accounted for as a 
part of the reversion. 

Money received by the executors on account of a sale of an interest in the 
estate, made up of land, chattels real, water and pasture franchisee, 
and including the use of tools and working animals, is not income, 
but capital, and must be accounted for as part of the reversion. 

The management of the income of the estate, after the same has vested in 
the widow, is no part of an executor's duties, and commissions may 
not be charged therefor by an executor. 

Decision of Judd, C.J., Appealed From. 

This is a petition for allowance of final accounts and die- 
charge of the executors and administrator. The accounts were 
referred to a master, who reports no commissions due, on the 
following facts: 

Duncan McBryde died May 16th, 1878, leaving a will by 
which his widow, E. A. McBryde, is entitled to all the income 
of the estate during life, with remainder to testator's children. 
The executf)rs of said will are E. A. McBryde, H. A. Wide- 
mann (by appointment October 6, 1878, after the probate of 
the will), and Alexander McBryde, who became executor May 
2d, 1882, under the will, upon becoming of age. 



ESTATE OP McBRYDE. 473 

The estate, at the death of Mr. McBryde (May 16th, 1878) 
was a cattle ranch, consisting of the land of Wahiawa and the 
leaseholds of Kalaheo, Lawai and Eleele, and certain real es- 
tate in Scotland. There is no inventory of any personal prop- 
erty, and no quention concerning this arises. 

The only liability which appears to have been outstanding 
against the estate was a debt due Messrs. T. H. Davies & Co., 
of $2,614, for advances made to Mr. McBryde during his life- 
time, for planting cane. Messrs. Davies & Co. continued to 
make advances up to February, 1879, amounting in all to $11,- 
498.38, at which date Mrs. McBryde personally assumed and 
paid the said sum due Davies <fe Co., and Mr. Dreier bought one- 
half interest in the plantation for $21,000, which was paid to 
Messrs. Schaefer & Co. and placed to Mrs. McBryde's private 
account. 

In 1884 Mrs. McBryde, in her name, and Mr. Dreier pur- 
chased the land of Eleele for $5,500, Mrs. McBryde's one-half 
share of the purchase money being paid from the profits of the 
plantation. In 1886, Mrs. McBryde, in her own name, pur- 
chased the land of Lawai for $45,500; the purchase price was 
paid from moneys held to her personal credit by Messrs. 
Schaefer & Co., $28,500, and by Messrs. Davies & Co., $17,000. 

The ranch has been managed by Alexander McBryde, who 
has received a salary therefor. All produce of the ranch has 
' been consigned to Davies & Co., and the proceeds placed to 
Mrs. McBryde's private account. The plantation has been 
managed by Mr. Dreier, the half owner, all produce of the plan- 
tation consigned to Schaefer & Co., and one-half of the profits 
placed to Mrs. McBryde's private account. Such gross receipts 
from the ranch have amounted to $162,531 . Mrs. McBryde's one- 
half share of the net profits of the plantation amount to $158,- 
914. The executors have never handled any of the receipts or 
expenditures from either the ranch or plantation. The services of 
Messrs. Davies <fe Co. and Messrs. Schaefer & Co. have been com- 
pensated for by Mrs. McBryde individually. 

The purchase of the two lands above named, and the invest- 
ment of some $20,000 belonging to Mrs. McBryde, were ne- 



474 MARCH, 1892. 

gotiated by Mr. Widemann, for which services he was paid the 
respective sums of $250 and $1,000 from her private moneys. 
Other investments have been made by Mrs. McBryde of her 
moneys, without consulting Mr. Widemann. 

The accounts submitted as the executors' accounts consist of 
condensed transcripts of the accounts of Messrs. Davies & Co. 
and Messrs. Schaefer & Co. with Mrs. McBrvde. 

Commissions are claimed by Mr. Widemann upon the whole 
of the receipts of Davies & Co. and Schaefer <fe Co., as above set 
forth. The commissions at the statutory rate on the receipts 
and disbursements of the ranch and plantation would amount 
to $15,293.70. The statute allows commissions to executors, 
administrators and guardians for receiving and paying out 
moneys, "ten cents for every dollar up to and not exceeding 
$1,000; seven cents for every dollar over $1,000, up to and not 
exceeding $5,000; five cents for every dollar over $5,000, and 
such additional allowance for their actual expenses as the court 
or judge shall deem reasonable." Section 1281, Civil Code, 
Comp. Laws, p. 421. 

The widow was entitled to the entire income of the estate of 
the deceased during her life, which was devised directly to her, 
and she received it from the agents of the cattle ranch and the 
sugar plantation, who kept the accounts of the respective enter- 
prises. 

There is no doubt that the services of Mr. Widemann, in ne- 
gotiating the sale of half the plantation interest and the con- 
tract of copartnership with Mr. Dreier, were very valuable to 
Mrs. McBryde, as also were his services in the purchase of Eleele 
and Lawai. These enterprises have turned out well. But these 
were services rendered as an attorney to the widow, and not as 
an administrator of the estate. 

It is true that the partnership agreement with Mr. Dreier is 
signed by Mr. Widemann, as administrator, but it does not pur- 
port to bind him as such, and distinctly repudiates his personal 
liability. I doubt very much if it binds the reversioners of the 
estate after the life interest of the widow has expired. 



ESTATE OP McBBYDE. 475 

After thohghtful consideration of this matter, I feel obliged 
to hold that the executors and administrator are not entitled to 
commissions, except on the $6,646.36 collected of Mr. Cleghorn, 
a debt incurred during the lifetime of the testator. 

On a careful perusal of the will, I find that there may be du- 
ties still to perform by the executors and administrator, and so 
they cannot be finally discharged. The accounts submitted, so 
far as they embrace transactions germain to the estate, are ap- 
proved. 

Opinion of the Full Court, by Dole, J. 

Although this is an application for the examination and al- 
lowance of executor's accounts, no such accounts are filed. They 
have kept ho accounts of their transactions, but have filed, in- 
stead, a resume of the accounts of T. H. Davies & Co. with the 
ranch portion of the estate, and of F. A. Schaefer <fe Co. with 
Mrs. McBryde, the widow, as a partner in the Eleele planta- 
tion. These are not executors' accounts, and cannot be ac- 
cepted for them. Neither do they represent the full money 
transactions appertaining to the business of the estate; the ac- 
count taken from the books of T. H. Davies & Co. represents 
receipts alone, and that from the books of F. A. Schaefer & Co. 
is the private account of the firm with the widow, in relation to 
her one-half interest in the Eleele plantation. 

The failure to file an inventory of the property was a serious 
neglect of duty by the executors, especially as a large portion 
of the estate consisted of live stock. 

In 1878, when John N. Wright, one of the executors, resigned 
his trust, he reported payments amounting to over $1,300, and, 
generally, that his services to the estate had been at considera- 
ble loss of time and convenience, as well as personal expense, 
and requested the Court to award such compensation as it con- 
sidered suitable under the circumstances. The Court approved 
the account and discharged Mr. Wright from further liability, 
but reserved the adjustment of his compensation to such time 
as his successor, Mr. Widemann, should file "a regular execu- 
tors' account." Such "regular executors' account" never having 



476 MARCH, 1892. 

been filed, Mr. Wright's compensation has never be^n adjusted; 
it should be disposed of in these proceedings. It appears to 
have been the intention or expectation of Judge Harris, who 
was the Probate Judge in the proceedings at that time, that the 
•'regular executors' account" to be filed by Mr. Widemann 
should include Mr. Wright's accounts in due form, they having 
been presented somewhat irregularly by the latter, and that 
then his compensation would be decided on. However this 
may be, it is due Mr. Wright that he should not be kept wait- 
ing any longer for wh.itev3r the estate may be foini to owe 
him. 

The agreement creating the partnership between the widow 
and Mr. Widemann, as exacutors, on the one part, and Mr. 
Dreier on the other, was distinctly a sale to Mr. Dreier of a part 
of the estate, for which he paid $21,000, of which $20,000 was 
placed to the credit of the widow's private account with F. A. 
Schaefer & Co. The balance of $1,000 was placed to the credit 
of the ranch account with T. H. Davies & Co. 

The executors had the right to make this agreement and ef- 
fect this sale with Dreier, but the consideration of $21,000 was 
not income of the estate which vested in the widow, but capital 
arising from a sale of a part of the estate, and must be ac- 
counted for by them as a part of the estate, and as this fund 
arose through the administration of the executors, they are en- 
titled to commissions upon it when they have accounted for it. 
Inasmuch as the widow had advanced of her private funds 
$11,498.38 towards this enterprise before the partnership was 
effected, she is entitled to so much out of the $21,000 received 
for the sale of the half interest in the plantation to Dreier. 

We find from the Master's Report that T. H. Davies & Co. 
had collected from A. S. Cleghorn <fe Co. $6,646.36, which the 
Master reports to be a part of a debt owed by the latter firm to 
the deceased in his lifetime. This amount, then, is a part of the 
estate, arid not income, to which the widow is entitled under 
the will ; and as such the executors should have accounted for 
it. It seems to have disappeared in the accounts of the ranch, 
having been treated as income. This amount must be charged 



ESTATE OF McBRYDE. 477 

against the widow in favor of the estate, and whereas the ex- 
ecutors, as such, have had no hand in its collection or disposi- 
tion, they are not now entitled to commissions in regard to it. 

In regard to the other large totals of money reported, amount- 
ing to $154,885.07, received by T. H. Davies & Co. on account 
of the ranch, and $120,742.62 received by F. A. Schaefer & Co. 
on account of the widow from the profits of the plantation, we 
consider that the latter sum is entirely outside of our jurisdic- 
tion in these proceedings, and consequently outside of the 
authority of the executors, it being the fruit of a private enter- 
prise of the widow carried on with her own private resources except 
as to the $21,000 received from Dreier, which must be regarded, 
as stated above, as a loan from the festate to her. If Mr. Wide- 
mann has rendered services in this enterprise beyond the incep- 
ception of it, or has handled these funds, he has done so solely 
as the agent of the widow, and not as an executor. 

The $154,885.07, received by T. H. Davies <fe Co. from the 
ranch business, is on a different footing from the fund received 
from the partnership. While the will devises to the widow the 
income of the estate for her life, it authorizes the executors to 
sell any portion of the Bstate whenever they shall, in their dis- 
cretion, deem it desirable for the sake of reinvestment or for the 
support of the widow and children. It is not clear to us, under 
the provisions of the will, whether the widow is entitled to the 
possession of the estate, or whether the management devolves 
upon the executors ; and the settlement of this question is not 
now important. For if the widow was entitled to the possession, 
there would be no commissions on account of the income^ and 
if the executors were authorized to take possession and manage 
the property they have not done so, but have allowed a business 
firm to attend to the financial management and have themselves 
handled no part of these receipts as executors. T. H. Davies & 
Co. have done the work and have doubtless charged and col- 
lected their compensation therefor. The executors, therefore, 
are not entitled to commissions, even if they had the right to 
receive the moneys. We do not go so far as to hold that trus- 
ees of this character may not hire clerks or business agents to 



478 APRIL, 1892. 

assist in carrying on the business of the trust. This may be 
done in some circumstances, and often is inevitable, but where 
trustees abandon the whole management of the trust to others 
they may not claim commissions. This rule applies equally to 
a trustee who leaves the execution of a trust to his co-trustee. 
Persons called to be trustees should either decline the trust or 
execute it themselves. Mason va, Roosevelt^ 5 Johns. Ch., 640. 

We therefore refuse the prayer of the petition on the showing 
made, and require the executors to furnish an account in accord- 
ance herewith. 

F, M, Hatch, for H. A. Widemann, Executor. 

Thurston & Frear, for devisees. 



IN THE MATTER OP JOHN ROSS et al Petition to Vacate 

Election of Nobles for Oahu. 

Appeal prom Bickerton, J. 

Hearing, April 8, 1892. Decision, April 13, 1892. 

JuDD, C.J., Bickerton and Dole, JJ. 

The Election Law of 1890 does not prescribe in what language, Hawaiian 
or English, the ballots shall be printed. 

Held, the printing of the ballots in EngHsh was a compliance with the law, 
as would also be the printing of them in Hawaiian, or in both said 
languages. 

Opinion of the Court, by Judd, C.J. 

A petition in due form to annul the election of Nobles for the 
Division of Oahu was filed and presented, and all the requisites 
of the statute regarding notice, etc., complied with. It came on 
for hearing before Mr. Justice Bickerton, who filed, on the 30th 
of March, a full statement of his findings of law and fact, dis- 
missing the petition. From this the petitioners perfected an 



IN RE ROSS. 479 

appeal to the Court in Banco. At the hearing before us, the 
petitioners, through their counsel, Messrs. A. S. Hartwell and 
C. W. Ashford, stated that they accepted all the findings of fact 
by the Trial Justice raised by the petition, except that set out in 
the sixth paragraph, wherein it is alleged that the Minister of 
the Interior refused and neglected to insert in the printed 
ballots the Hawaiian equivalent of the name of the candidate 
Henry Waterhouse. We therefore aflSrm the findings of fact 
not excepted to, and will consider the contested matter later on. 

The principal ground advanced b}' the petitioners upon which 
the election is sought to be annulled is that the ballots prepared 
by the Minister of the Interior for use on the occasion were 
illegal, in that they did not contain any of the words " Koho 
ana no ka makahiki 1892," nor any Hawaiian words specifying 
the name of the ofiice, or the name of the division for Nobles, or 
the term of the oflSce, nor, in the cases of the special elections, 
any words in the Hawaiian language specifying the unexpired 
terms of the office, nor the words " Koho Balota Kuikawa," but 
that all of said Hawaiian words were omitted therefrom, as 
appears by a specimen of said ballots appended to and made a 
part of the petition. More succinctly, the ballot is averred to 
be illegal because its descriptive parts were not printed in 
Hawaiian. 

The question is an important one, having a wider effect than 
on the present case. We find nothing in the Constitution or the 
statute laws requiring that acts passed by the Legislature should 
be in both Hawaiian and English, though the rules of the Legis- 
lature have undoubtedly required that this should be done. 

The only statute, that we are aware of, that bears upon this 
matter is the early one, that where d. radical and irreconcilable 
difference is found to exist between the English and Hawaiian 
versions of any part of the Civil Code, the English version shall 
be held binding. Civil Code of 1859, Section 1493. This was 
enlarged by the Act of 1864, so that now if there is found to 
exist a radical and irreconcilable difference between the English 
and Hawaiian versions of any of the laws of the Kingdom, which 
have been or may hereafter be enacted, the English version 



480 APRIL, 1892. 

shall be held binding. This would certainly imply that the 
statute laws of this Kingdom have been and will continue to be 
passed and promulgated in two versions, English and Hawaii- 
an. But, though this may be the case, the two versions con- 
stitute but one act. There is no dual legl.dation. As a rule 
one version is the translation of the other. The effort is always 
made to have them exactly coincide, and the legal presumption 
is that they do. We are aware that, though the Hawaiian lan- 
guage is the original language of this people and country, the 
English language is largely in use. Of necessity the English 
language must be largely employed to record transactions of the 
government in its various branches, because the very ideas and 
principles adopted by the government come from countries 
where the English language is in use. Not that it is exclusive- 
ly employed, or that the use of the Hawaiian language in any 
instance would not be perfectly regular and legajl. The records 
of our courts show pleadings of all kinds in the Hawaiian lan- 
guage received with as much approval as those in the English. 
Which language would be used would depend upon the com- 
parative familiarity of the writer with one or the other. 

An aboriginal Minister of the Interior, looking only at the 
Hawaiian version of the Election Law of 1890, might order the 
descriptive words on the ballots to be printed in the Hawaiian 
language, he being more familiar with it. No one could say 
that such a ballot would not comply with the law. Equally legal 
would be a ballot where the descriptive parts were in the Eng- 
lish language exclusively. Such a ballot would strictly comply 
with the Act as read by the Minister in the English language, 
there being nothing in the Act directing which language should 
be used, or that both should be used. 

A forcible argument could be made to the Legislature advo- 
cating an Act requiring the printing the ballots in both langua- 
ges, in order that the needed information be furnished to the 
voters who understand Hawaiian or English. But we do not 
find that the law on the statute book directs in what language 
the ballot shall be printed. The employment of either or of 
both languages would comply with the law. 



IN RE ROSS. 481 

We remark that our Opinion to the Cabinet, on the 19th Jan- 
uary last, only went to the extent of saying that the insertion 
on the printed ballot of the Hawaiian version of the name of any 
candidate, in addition to his foreign name, is not forbidden by 
the statute which prohibits tie ballots bearing any "word, 
motto, device, sign or symbol" other than allowed by the law, 
viz., the names of the candidates and certain descriptive words, 
as " election for the year," etc., etc. We nowhere intimated 
that the Hawaiian paraphrase or equivalent of an English or 
foreign name should be inserted in order to the legality of the 
ballot. 

In regard to the disputed question of fact, respecting Mr. 
Waterhouse's name on the ballot, we observe that the inter- 
lining of his name, as some Hawaiians would pronounce it, in 
the petition of voters for his candidacy could hardly be held as 
a request to the Minister that his name be so printed on the 
ballot. Also, that if the request was orally made there is no 
evidence that non-compliance with the request was by design 
or intentional fraud or discourtesy. Having found that the 
omission to print descriptive words on the ballots in Hawaiian 
did not vitiate them, the omission of the Hawaiian version of a 
candidate's name is equally harmless. 

We therefore affirm the decision appealed from and dismiss 
the petition. 

Decision op Bickerton, J., Appealed From. 

The petition sets forth that the petitioners, fifty-one in number, 
are residents of Oahu ; that they voted or were entitled to vote 
for Nobles of the Kingdom at the general election held on the 
Island of Oahu on the third day of February, 1892. That the 
election was held ; that proper returns were made, and that cer- 
tificates of election were made, signed and delivered to the per- 
sons so declared to be elected. That duplicates of the certifi- 
cates, together with the tabulated returns, were transmitted by 
said Marshal to the Minister of the Interior ; that the following 
named gentlemen were declared elected : J. N. S. Williams, 
John A. Cummins and Paul Neumann for the term of six years, 
81 



482 APRIL, 1892. 

John Ena for the unexpired term of four years, and Arthur P. 
Peterson for the unexpired term of two years. 

That C. B. Maile, John Ross, Henry Waterhouse, John Em- 
meluth, A. Marques and Samuel M. Kaaukai, candidates for six 
years. E. B. Thomas for four years, and James Gay for two 
years, were formally and legally qualified and registered as such 
candidates ; that their several names appeared, together with 
those before named, on the ballots provided by the Minister of 
the Interior for use. 

That it then was and is the law that each ballot should ex- 
press in the Hawaiian language what it did in the English 
language ; that none of the ballots used at said election con- 
tained any Hawaiian words expressing what was printed in 
English. 

That in the preparation and printing of said ballots the Min- 
ister of the Interior refused and neglected to insert therein the 
Hawaiian equivalent of the name of said candidate Henry Wa- 
terhouse, viz., the word " Walakahauki," although said Minister 
was formally requested to insert said Hawaiian equivalent, and 
although all of the said ballots contained the Hawaiian equi- 
valents of the names of all the others of said candidates having 
foreign names. 

That by reason of such omission from said ballots of said 
words in the Hawaiian language, and of the Hawaiian equivalent 
of the name of said Henry Waterhouse, it was impossible for 
Hawaiian voters for Nobles who were unacquainted with the 
English language (of whom there were several hundreds) to 
learn the meaning or particulars of said ballots, and consequently 
they were thereby deprived of their legal and constitutional 
rights under the law. 

And prays that said election be vacated and declared null and 
void. 

The specimen ballot appended to the petition is in this form.: 



IN RE ROSS. . 483 

ELECTION FOR THE TEAR 1892. 

DIViaiON OF OAHU. FOB KOKLBS. 

For Six Years, 

0. B. MAILE, 

HENRY WATERHOUSE, 

J. N, S. WILLIAMS (Wiliama), 

PAUL NEUMANN (Paulo Neumana), 

A- MARQUES (Makuika), 

JOHN ROSS (Kapena Loke), 

J. A. CUMMINS (Eeoni Eamaki), 

JOHN EMMELUTH (Emaluka), 

SAM'L M KAAUKAI. 

Special Election. For the Unexpired Term of Four Years. 

E. B. THOMAS (Kamaki), 
JOHN ENA (Keoni Ina). 

Special Election. For the Unexpired Term of Two Years. 

.JAMES GAY (Kimo Ke), 
A. P. PETERSON (Aka Piketona). 

The law under which these proceedings are brought is Chap- 
ter LXXXVI. of the Session Laws of 1890, being ** An Act to 
Amend and Consolidate the Election Laws of the Kingdom.'' 
Sections 87, 88, 89 and 90 of said Act read as follows : 

"Section 87. In addition to the methods hereinbefore set 
forth for vacating any seat in the Legislature, any candidate, or 
any thirty persons who have voted, or were entitled to vote in 
the district, may file a petition addressed to the Chief Justice of 
the Supreme Court, setting forth any cause or causes why an 
election shall be vacated or a seat be declared vacant. Such 
petition shall be